PALESTINE, UTI POSSIDETIS JURIS, AND THE
BORDERS OF ISRAEL
Abraham Bell* & Eugene Kontorovich**
Israel’s borders and territorial scope are a source of seemingly endless debate.
Remarkably, despite the intensity of the debates, little attention has been paid to
the relevance of the doctrine of uti possidetis juris to resolving legal aspects of the
border dispute. Uti possidetis juris is widely acknowledged as the doctrine of
customary international law that is central to determining territorial sovereignty
in the era of decolonization. The doctrine provides that emerging states
presumptively inherit their pre-independence administrative boundaries.
Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit
the boundaries of the Mandate of Palestine as they existed in May, 1948. The
doctrine would thus support Israeli claims to any or all of the currently hotly
disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even
potentially the Gaza Strip (though not the Golan Heights).
TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 634
I. THE DOCTRINE OF UTI POSSIDETIS JURIS ........................................................... 640
A. Development of the Doctrine ..................................................................... 640
B. Applying the Doctrine ................................................................................ 644
II. UTI POSSIDETIS JURIS AND MANDATORY BORDERS ......................................... 646
A. The Mandate of Mesopotamia ................................................................... 648
1. The Mosul Question ............................................................................... 649
2. Iraqi-Kuwaiti Border .............................................................................. 651
B. The Mandate of Syria ................................................................................. 652
*
Professor, Bar Ilan University Faculty of Law and University of San Diego
School of Law.
**
Professor, Northwestern Pritzker School of Law. An earlier version of this
paper was presented at a conference at the Hebrew University of Jerusalem (“Legalities and
Legacies: The Past, Present, and Future of the Palestine Mandate in International Law”),
and the authors are grateful to conference participants for their helpful comments and
criticisms.
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1. Lebanon .................................................................................................. 653
2. Alexandretta/Hatay ................................................................................. 654
C. Togoland .................................................................................................... 657
D. Cameroon ................................................................................................... 659
E. Partitions and Joinders—Ruanda-Urundi ................................................... 662
F. Exclaves: Walvis Bay (Namibia) ................................................................ 663
III. THE PALESTINE MANDATE ............................................................................. 667
A. Boundaries ................................................................................................. 668
B. Transjordan ................................................................................................ 672
C. Other Administrative Lines ........................................................................ 675
D. Proposals for Altering Palestine’s Boundaries ........................................... 676
IV. APPLYING UTI POSSIDETIS JURIS TO THE BORDERS OF ISRAEL........................ 681
A. Israel’s Independence ................................................................................. 683
1. Termination ............................................................................................ 683
2. Self Determination ................................................................................. 684
3. Armed Conflict ....................................................................................... 686
B. Israel’s Conduct Following Independence ................................................. 686
C. Armistice Agreements ................................................................................ 689
D. Subsequent Events ..................................................................................... 689
E. The State of Palestine ................................................................................. 690
CONCLUSION ........................................................................................................ 692
INTRODUCTION
Israel’s borders and territorial scope are a source of heated and
longstanding debate. 1 The fiercest arguments concern Jerusalem—many states
deny Israeli claims to sovereignty in “East Jerusalem” (areas occupied by Jordan
from 1948–1967 and incorporated thereafter by Israel into the Jerusalem
municipality), while others, such as the United States, deny Israeli claims to
sovereignty in any part of Jerusalem, East or “West.” 2 But the debates go well
1.
See, e.g., HENRY CATTAN, PALESTINE AND INTERNATIONAL LAW: LEGAL
ASPECTS OF THE ARAB-ISRAELI CONFLICT 122–30 (1973); HOWARD GRIEF, THE LEGAL
FOUNDATION AND BORDERS OF ISRAEL UNDER INTERNATIONAL LAW (2008); ELIHU
LAUTERPACHT, JERUSALEM AND THE HOLY PLACES 5 (1968);Yehuda Z. Blum, The Missing
Reversioner Reflections on the Status of Judea and Samaria, 3 ISR. L. REV. 279 (1968);
Alan Levine, Note, The Status of Sovereignty in East Jerusalem and the West Bank, 5
N.Y.U. J. INT’L L. & POL. 485, 485–502 (1972); Stephen M. Schwebel, Comment, What
Weight to Conquest?, 64 AM. J. INT’L L. 344, 344–47 (1970).
2.
See, e.g., John Quigley, Jerusalem: The Illegality of Israel’s Encroachment,
9 PALESTINE Y.B. INT’L L. 19 (1996/97); Larry Kletter, Note, The Sovereignty of Jerusalem
in International Law, 20 COLUM. J. TRANSNAT’L L. 319 (1981). For more on the United
States’ view on Jerusalem, see Zivotofsky ex. rel. Zivotofsky v. Kerry, 135 S. Ct. 2076
(2015).
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UTI POSSIDETIS JURIS
635
beyond Jerusalem. The location of Israel’s eastern frontier is the heart of debates
about the status of Israel’s presence in the West Bank.3
Remarkably, despite the intensity of the debates, little attention has been
paid to the relevance of the doctrine of uti possidetis juris 4 to resolving legal
aspects of the border dispute. Uti possidetis juris is widely acknowledged as the
doctrine of customary international law that has proven central to determining
territorial sovereignty in the era of decolonization. 5 The doctrine provides a clear
guideline for the borders of newly created states formed out of territories that
previously lacked independence or sovereignty.
Today, it is generally accepted that the borders of newly formed states are
determined by application of uti possidetis juris as a matter of customary
international law. The doctrine even applies when it conflicts with the principle of
self-determination. 6 Summarizing the operation of the rule, Steven Ratner
explains, “Stated simply, [the doctrine of] uti possidetis [juris] provides that states
emerging from decolonization shall presumptively inherit the colonial
administrative borders that they held at the time of independence.” 7 Recent
decades have shown that uti possidetis juris applies to all cases where the borders
of new states have to be determined, and not just in its original context of
decolonization.8 Thus, for instance, uti possidetis juris was used to determine the
borders of the states created by the dissolution of the Soviet Union, 9
Czechoslovakia,10 and Yugoslavia.11
3.
See, e.g., DAVID MAKOVSKY, WASHINGTON INSTITUTE FOR NEAR EAST
POLICY, IMAGINING THE BORDER: OPTIONS FOR RESOLVING THE ISRAELI-PALESTINIAN
TERRITORIAL ISSUE 1–7 (2011); Toby Harnden & Adrian Blomfeld, Benjamin Netanyahu
Rebukes Obama Over 1967 Plan, THE TELEGRAPH (May 20, 2011, 7:52 PM),
http://www.telegraph.co.uk/news/worldnews/middleeast/israel/8527226/BenjaminNetanyahu-rebukes-Barack-Obama-over-1967-plan.html; Frank Jacobs, The Elephant in the
Map Room, N.Y. TIMES: OPINIONATOR (Aug. 7, 2012, 12:43 PM),
http://opinionator.blogs.nytimes.com/2012/08/07/the-elephant-in-the-map-room/?_r=0.
4.
Sometimes written as “uti possidetis iuris.”
5.
See Malcolm N. Shaw, The Heritage of States: The Principle of Uti
Possidetis Today, 67 BRIT. Y.B. INT’L L. 75, 115 (1996).
6.
Id. at 123–25.
7.
Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of
New States, 90 AM. J. INT’L L. 590, 590 (1996).
8.
Anne Peters, The Principle of Uti Possidetis Juris: How Relevant Is It for
Issues of Secession? in SELF-DETERMINATION AND SECESSION IN INTERNATIONAL LAW 95–
137 (Christian Walter et al. eds., 2014).
9.
See Justin A. Evison, MIGs and Monks in Crimea: Russia Flexes Cultural
and Military Muscles, Revealing Dire Need for Balance Of Uti Possidetis and
Internationally Recognized Self-Determination, 220 MIL. L. REV. 90, 95 (2014).
10.
Ratner, supra note 7, at 597–98.
11.
See PETER RADAN, THE BREAK-UP OF YUGOSLAVIA AND INTERNATIONAL LAW
5 (2002).
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Although it was once merely a regional rule, the doctrine is now applied
12
to
border
disputes
around
the
world.
As the International Court of Justice ruled in The Case Concerning the Frontier
Dispute (Burkina Faso/Republic of Mali):
[T]he principle of uti possidetis [juris] seems to have been first invoked
and applied in Spanish America, inasmuch as this was the continent which first
witnessed the phenomenon of decolonization involving the formation of a number
of sovereign States on territory formerly belonging to a single metropolitan State.
Nevertheless the principle is not a special rule which pertains solely to one specific
system of international law. It is a general principle, which is logically connected
with the phenomenon of the obtaining of independence, wherever it occurs. Its
obvious purpose is to prevent the independence and stability of new States being
endangered by fratricidal struggles provoked by the challenging of frontiers
following the withdrawal of the administering power. . . . At first sight this
principle conflicts outright with another one, the right of peoples to selfdetermination. In fact, however, the maintenance of the territorial status quo [] is
often seen as the wisest course, to preserve what has been achieved by peoples
who have struggled for their independence. 13
The application of the principle of uti possidetis juris to the legal borders
of Israel seems straightforward. Israel emerged as a new state in 1948, when it
declared statehood at the expiration of the Mandate of Palestine.14 The new state of
Israel was immediately invaded by its neighbors and several non-neighboring Arab
states, 15 and at the conclusion of hostilities, Israel possessed only part of the
territory of the Mandate (the remaining Mandatory territory was occupied by
Syria, Egypt, and Transjordan). 16 Israel and its neighbors reached armistice
agreements,17 but they failed to reach peace treaties or boundary agreements. For
its part, the British Mandatory government—the immediately prior ruling authority
until 1948—did not propose or reach any agreement on borders with the new
state.18 While there had been proposals to divide the territory of Palestine between
12.
See Shaw, supra note 5, at 104, 106–11; Temple of Preah Vihear (Cambodia
v. Thai.), Judgment, 1962 I.C.J. Rep. 6, 17–27 (June 15); see also Joshua Castellino,
Territorial Integrity and the “Right” to Self-Determination: An Examination of the
Conceptual Tools, 33 BROOK. J. INT’L L. 503, 509–10 n.34 (2008).
13.
In re Frontier Dispute (Burk. Faso v. Mali), Judgment, 1986 I.C.J. 554, 565–
67 (Dec. 22).
14.
See BENNY MORRIS, 1948: A HISTORY OF THE FIRST ARAB-ISRAELI WAR 178
(2004).
15.
See id. at 181.
16.
See id. at 375. The possessory status of some areas was difficult to
determine; these areas were considered demilitarized “no-man’s zones.”
17.
See Lebanese-Israeli General Armistice Agreement, Isr.–Leb., March 23,
1949, UN Doc S/1296; Armistice Agreement Between the Hashemite Jordan Kingdom and
Israel, Isr.–Jordan, Apr. 3, 1949, U.N. Doc. S/1302; Israeli-Syrian General Armistice
Agreement, Isr.–Syria, July 20, 1949, U.N. Doc. S/1353; Egyptian-Israeli General
Armistice Agreement, Egypt–Isr., Feb. 23, 1949, U.N. Doc. S/1264.
18.
See MORRIS, supra note 14, at 178–79.
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UTI POSSIDETIS JURIS
637
two new states (one Jewish and one Arab), Israel was the only state to emerge
from the Mandate of Palestine.19
Israel’s independence would thus appear to fall squarely within the
bounds of circumstances that trigger the rule of uti possidetis juris. Applying the
rule would appear to dictate that Israel’s borders are those of the Palestine
Mandate that preceded it, except where otherwise agreed upon by Israel and its
relevant neighbor. And, indeed, rather than undermine the application of uti
possidetis juris, Israel’s peace treaties with neighboring states to date—with
Egypt20 and Jordan21—appear to reinforce it. These treaties ratify borders between
Israel and its neighbors explicitly based on the boundaries of the British Mandate
of Palestine.22 Likewise, in demarcating the so-called “Blue Line” between Israel
and Lebanon in 2000, the United Nations Secretary General relied upon the
boundaries of the British Mandate of Palestine. 23
Given the location of the borders of the Mandate of Palestine, applying
the doctrine of uti possidetis juris to Israel would mean that Israel has territorial
sovereignty over all the disputed areas of Jerusalem, the West Bank, and Gaza,
except to the degree that Israel has voluntarily yielded sovereignty since its
independence. 24 This conclusion stands in opposition to the widely espoused
position that international law gives Israel little or no sovereign claim to these
areas.25 Amazingly, however, such pronouncements reveal no awareness 26 of the
19.
Id.
20.
Treaty of Peace, Egypt–Isr. art. II, Mar. 26, 1979, 18 I.L.M. 362 (1979)
(“The permanent boundary between Egypt and Israel is the recognized international
boundary between Egypt and the former mandated territory of Palestine . . . .”).
21.
Treaty of Peace, Isr.–Jordan, Oct. 26, 1994, 34 I.L.M. 43 (1995) (“The
international boundary between Israel and Jordan is delimited with reference to the
boundary definition under the Mandate . . . .”).
22.
As we discuss in Part III, while explicitly based on the Mandatory
boundaries, the peace-treaty boundaries in some cases differed from earlier frontiers, and
the treaties also recorded some areas of unresolved disagreement between the parties.
23.
See U.N. Secretary-General, Report of the Secretary-General on the
Implementation of Security Council Resolutions 425 (1978) and 426 (1978), ¶ 6 n.1, U.N.
Doc. S/2000/590 (June 16, 2000) (“As noted in my report of 22 May, the international
boundary between Israel and Lebanon was established pursuant to the 1923 Agreement
between France and Great Britain entitled ‘Boundary Line between Syria and Palestine
from the Mediterranean to El Hamme’, which was reaffirmed in the ‘Israeli-Lebanese
General Armistice Agreement’ signed on 23 March 1949.”).
24.
See supra note 22.
25.
See, e.g., Barack Obama, President, U.S., Remarks by the President on the
Middle East and North Africa (May 11, 2011), https://www.whitehouse.gov/the-pressoffice/2011/05/19/remarks-president-middle-east-and-north-africa; David Cameron, Prime
Minister, U.K., Mahmoud Abbas, President, Palestine, David Cameron and Mahmoud
Abbas Press Conference (Mar. 13, 2014), https://www.gov.uk/government/speeches/pressconference-in-jerusalem.
26.
Some writing in support of Palestinian territorial claims obliquely concedes
the relevance of the doctrine while refusing to apply it to Israel. Jean Salmon, for instance,
in discussing whether a state of Palestine was created by declaration in 1988, writes that the
borders of Mandatory Palestine have been transferred to the compound entity of Israel and a
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application of uti possidetis juris to the borders between Israel and its neighboring
states.27 Indeed, the literature on both the doctrine and the Israeli-Arab conflict has
almost entirely ignored application of uti possidetis to Mandatory Palestine.28
At its expiration in 1948, the borders of the Mandate of Palestine, both
internal and external, were relatively well demarcated and uncontroversial. Thus
future Arab Palestine by operation of uti possidetis juris. At the same time, Salmon
implicitly denies the benefit of the doctrine to any Israeli claims, while offering no
precedent or argument for the application of uti possidetis juris to a compound comprised of
a state created several decades earlier and a proposed new state yet to be created. Jean
Salmon, Declaration of the State of Palestine, 5 PALESTINE Y.B. INT’L L. 48, 53 (1989). For
his part, Gino Naldi notes that uti possidetis juris transforms “former boundaries [into]
international frontiers protected by international law” before improbably concluding that,
“[c]onsequently, a Palestinian state would correspond to all the Palestinian territories Israel
has occupied since 1967, including East Jerusalem.” Gino J. Naldi, The Peaceful Settlement
of Disputes in Africa and its Relevance to the Palestinian/Israeli Peace Process, 10
PALESTINE. Y.B. INT’L L. 27, 40 (1998–1999). Naldi makes no reference to the borders of
the Mandate and provides no explanation for rejecting the conclusion that the former
boundaries of the Mandate would be Israel’s international frontiers protected by
international law. Id. Iain Scobbie acknowledges that the doctrine of uti possidetis juris
would require transferring the borders of the Palestine Mandate to the independent state that
emerged, but then strangely ignores that the independent state that emerged was Israel, and
instead argues that a future state of Palestine would inherit the borders of the Mandate. Iain
Scobbie & Sarah Hibbin, Research Paper, The Israel-Palestine Conflict in International
Law: Territorial Issues (SOAS Sch. L., Research Paper No. 02/2010, 2009),
http://ssrn.com/abstract=1621382; see also, Daniel Benoliel, Israel and the Palestinian
State: Reply to Quigley, 1 U. BALT. J. INT’L L. 1, 19–20 (2012) (noting that an independent
Palestinian state would have the borders of those areas under Palestinian Authority
jurisdiction under the Oslo Accords). As we discuss in the Conclusion, the doctrine of uti
possidetis juris may very well be relevant to potential Palestinian border discussions in the
future, but such discussions are premature until the establishment of Palestine’s
independence as a state.
27.
Another small amount of literature concerns the related, but rejected, legal
principle of uti possidetis facto. See infra Part I (defining uti possidetis facto); Allan
Gerson, Trustee-Occupant: The Legal Status of Israel’s Presence in the West Bank, 14
HARV. INT’L L.J. 1, 6 n.15 (1973) (noting that “[t]he doctrine of uti possidetis [facto]
according to which the governing factor is the respective positions achieved by the
belligerents at the termination of a war is generally not accepted in international law”);
Sanford R. Silverburg, Uti Possidetis and a Pax Palistiniana: A Proposal, 16 DUQ. L. REV.
757, 759 (1977–1978) (defining uti possidetis [facto] as sanctifying the territorial “status
quo post bellum”—i.e., as granting sovereignty on the basis of actual post-war possession
rather than pre-independence boundaries—and arguing for its application to the borders of
Israel). In a spectacular non sequitur, John Quigley cites Silverburg disapprovingly in
arguing that “the international community has not followed . . . [the doctrine of] uti
possidetis [facto], which says that one owns what one possesses” and that uti possidetis
cannot therefore be “posited to justify Israel’s existence.” JOHN B. QUIGLEY, THE CASE FOR
PALESTINE: AN INTERNATIONAL LAW PERSPECTIVE 91–92 (2005).
28.
Without addressing directly the effect of uti possidetis juris, Malcolm Shaw
notes that the proposed partition of the Palestine Mandate in 1947 was an attempt to utilize
the powers of the General Assembly towards the Mandate to mitigate the demands of uti
possidetis juris in the interest of peace. See Shaw, supra note 5, at 148.
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UTI POSSIDETIS JURIS
639
uti possidetis juris could be a powerful tool for resolving extant disputes about the
borders of Israel. To be sure, Israel appears to be interested in drawing consensual
new boundaries that differ from the borders established by uti possidetis juris.29
Uti possidetis juris does not preclude later modifications of borders. Application of
uti possidetis juris, as is customary in other boundary disputes, would nevertheless
provide a clear baseline for future negotiated solutions. 30
In this Article, we attempt to fill this notable gap in the scholarly
literature. The Article explores the history and development of uti possidetis juris
to see how it has been applied to previous disputes about states emerging from
Mandatory territories, which are neither “classic decolonizations” nor the breakup
of composite states. Likewise, this Article looks to the history of the Palestine
Mandate (and to historic disputes about the Palestine borders) to see how it
conforms to the patterns of the application of uti possidetis juris. We find that uti
possidetis juris has been fully applied to the numerous border disputes regarding
former Mandatory territories, notwithstanding the Mandates’ odd juridical statuses
as neither full-fledged states, nor colonial possessions, nor mere administrative
units of the Mandatory power. We find that bitter controversies about the borders
of the Palestine Mandate are far from particular to Palestine. Similar controversies
emerged regarding the borders of many other Mandates because they often took
little account of national self-determination interests and were in several instances
illegally modified by the Mandatory. Numerous Mandates were plagued by
international doubts about the wisdom of their borders and subjected to serious
discussions of revision. Yet in all cases, the borders of the Mandate as they stood
at independence became the borders of the new successor state.
We go on to examine the events surrounding the termination of the
Palestine Mandate and declaration of independence by Israel to determine whether
the application of uti possidetis juris was overridden by Israel’s behavior at the
time of independence. We fail to find any basis in that behavior for rejecting the
application of uti possidetis juris.
29.
Since 1993, Israel has been engaged in negotiations with the Palestine
Liberation Organization (“PLO”) based on some unspecified future Israeli territorial
concessions to be agreed upon in “permanent status” talks. See Declaration of Principles on
Interim Self-Government Arrangements (“Oslo Agreement”), PLO–Isr., art. V, Sept. 13,
1993,
http://www.refworld.org/docid/3de5e96e4.html%20[accessed%2017%20December%20201
5]; see also The Israeli-Palestinian Interim Agreement (“Oslo II”), Isr.–Palestine, ch. 2 art.
XI
¶
2(f),
ch.
3
art.
XVII
¶
1(a),
http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israelipalestinian%20interim%20agreement.aspx. Successive Israeli governments have made
several “permanent status” offers to the PLO, which would have involved the waiver of
Israeli claims of sovereignty to nearly all of the West Bank and Gaza. For a summary of
Israeli offers, see Rick Richman, The Thrice Offered Palestinian State, COMMENT.
MAGAZINE ¶ 1 (May 17, 2011), https://www.commentarymagazine.com/foreignpolicy/middle-east/thrice-offered-palestinian-state/.
30.
The territorial baseline for negotiations has proved an extremely contentious
issue in the past.
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In Part I, we explain the doctrine of uti possidetis juris generally and
show how it has been used in other post-colonial territorial disputes. In Part II, we
turn to the way uti possidetis juris has been used to determine the boundaries of
states that emerged from Mandatory territories. In Part III, we explore the history
of the emergence of the state of Israel from the British Mandate of Palestine, with
particular attention to the boundaries of the Palestine Mandate. Finally, in Part IV,
we examine whether there are any peculiar features of the Palestine Mandate or the
independence of Israel that would preclude application of the doctrine of uti
possidetis juris. A conclusion follows, in which we sketch out the implications of
our findings.
I. THE DOCTRINE OF UTI POSSIDETIS JURIS
A. Development of the Doctrine
As the Latin name suggests, uti possidetis juris stems from Roman law,
although the modern doctrine of international law has little to do with its Roman
antecedent. The Roman uti possidetis concerned property, rather than territorial
sovereignty. It granted a litigant with actual possession of a disputed item a
presumptive right to continue in possession. It earned its name as a result of the
phrase uti possidetis, ita possideatis, meaning “as you possess, so may you
possess.”31
The modern international law doctrine of uti possidetis juris is generally
thought to have originated in nineteenth-century Latin America.32 In many ways,
the international law doctrine is the opposite of its Roman-law ancestor. The
Roman version created only a presumptive right; the international law version
vests absolute title. The Roman version concerned property rights; the
international law version concerns territorial sovereignty. And most importantly,
the Roman version rewarded actual possession with legal right; the international
law version disregards actual possession and recognizes title on the basis of
colonial administrative lines.33
The modern doctrine of uti possidetis juris is best understood by looking
to its historic emergence nearly two centuries ago. At the time, the various new
countries of Latin America were engaged in a series of boundary disputes
following the withdrawal of Spain and Portugal—the colonial powers that had
previously claimed territorial sovereignty of all territory south of the United States
and Canada—and the emergence of a number of entirely new states. Neither Spain
nor Portugal had clearly established the borders of the new states on their
withdrawal. Additionally, the newly independent territories rapidly splintered into
a large number of independent countries. Seeking to avoid endless conflicts about
31.
See John Bassett Moore, Memorandum on Uti Possidetis: Costa Rica –
Panama Arbitration, 1911, in 3 THE COLLECTED PAPERS OF JOHN BASSETT MOORE 328, 330
(1944); Malcolm Shaw, Peoples, Territorialism and Boundaries, 8 EUR. J. INT’L L. 478, 492
(1997); Peters, supra note 8, at 97–98; Ratner, supra note 7, at 592–93.
32.
Shaw, supra note 31, at 493.
33.
Shaw, supra note 5, at 117; Shaw, supra note 31, at 492.
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UTI POSSIDETIS JURIS
641
their borders, the new states soon adopted a rule of uti possidetis to establish their
boundaries.34
At the time, two different versions of uti possidetis vied for supremacy.
The rule of uti possidetis facto (or uti possidetis de facto or uti possidetis facti)
would have awarded sovereignty to the actual possessor of territory. The doctrine
of uti possidetis juris (or uti possidetis iuris), by contrast, ignored the actual land
holdings of the new countries, and instead focused on the administrative
boundaries created by the colonial powers prior to independence. 35 Importantly,
the administrative lines used to fix the boundaries under uti possidetis juris
generally were not international boundaries, and the administrative units they
demarcated were not the sovereign predecessors of the new countries. Rather, uti
possidetis juris utilized administrative lines of various kinds (some purely
administrative, some international) to fashion the new sovereign borders.
Succession to the legal personality of the colonial entity was thus not a
requirement of the application of uti possidetis juris.36
International law writings in the seventeenth century suggested that uti
possidetis facto was the preferred doctrine. For instance, in 1612, Alberico Gentili
explained that international law held that “territories . . . remain the power of the
[state] who holds them at the time when peace is made, unless it has been
otherwise provided by a treaty.”37 As late as 1929, T.J. Lawrence wrote that the
principle of uti possidetis “held that the conclusion of peace legalizes the state of
possession existing at the moment, unless special stipulations are contained in the
treaty.”38 By looking to possession as the key to the application of the doctrine, uti
possidetis facto sanctified the status quo post bellum—the de facto borderlines
created by war.39
But in time, uti possidetis juris )and not uti possidetis facto) became the
dominant doctrine for determining post-colonial borders.40 After being adopted in
numerous agreements establishing borders in Latin America, 41 the principle was
adopted in Africa in the Organization of African Unity’s Resolution on Border
Disputes among African States.42 The International Court of Justice subsequently
34.
SUZANNE N. LALONDE, DETERMINING BOUNDARIES IN A CONFLICTED WORLD:
THE ROLE OF UTI POSSIDETIS 31 (2002).
35.
Id.
36.
Id. at 33.
37.
See ALBERICO GENTILI, DE JURE BELLI LIBRI TRES 381 (John C. Rolfe trans.,
1933) (1612).
38.
T.J. LAWRENCE, PRINCIPLES OF INTERNATIONAL LAW 562 (1923).
39.
LALONDE, supra note 34, at 18.
40.
Id. at 23.
41.
See, e.g., Boundary Treaty, Chile–Arg. July 23, 1881; Treaty Relating to the
Demarcation of Frontiers, Bol.–Peru, Sept. 23, 1902; see also LALONDE, supra note 34, at
24–60.
42.
See Org. of African Unity [OAU], Border Disputes Among African States,
AHG/Res. 16(I), http://www.peaceau.org/uploads/ahg-res-16-i-en.pdf; see also LALONDE,
supra note 34, at 103–37.
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applied the doctrine of uti possidetis juris in several cases, 43 but its definitive
pronouncement on the subject was in the Burkina Faso v. Mali case.44 In that case,
the court had to draw the border between Burkina Faso and Mali, both of which
emerged from a single French colony called French West Africa. The court noted
that the parties had requested a ruling on the basis of uti possidetis juris, but even
if the parties had not so agreed, the court would have used the doctrine anyway. 45
The court explained that uti possidetis juris was a doctrine of customary
international law, applicable throughout the world. 46 The court also seized the
opportunity to explain the scope of uti possidetis juris, stating that where the
colonial administrative lines, and the exercise of colonial authority within those
lines, were clear, the lines would serve as the boundaries of the new state even
where the new state did not actually possess the territory. 47 Therefore, a state that
acquired territorial sovereignty over territory through uti possidetis juris would not
lose sovereignty simply because another state possessed and administered part of
that territory. Additionally, the doctrine of uti possidetis juris would take
precedence in establishing borders given the paramount importance of stable
borders in maintaining the peace, notwithstanding the importance of the principle
of self-determination in determining governing arrangements in the post-colonial
world.48
Recent decades have demonstrated that uti possidetis juris applies more
broadly to all new states, even when not the result of a process of decolonization.
Thus, recent years have seen the application of the principle of uti possidetis juris
to determine the borders of the new states created out of the former Yugoslavia,
Czechoslovakia, and Soviet Union. 49 In the case of Yugoslavia, the universal
application of uti possidetis juris was reaffirmed by the Robert Badinter-led
Arbitration Commission. The Badinter Commission’s declaration was clear and
explicit: “[W]hatever the circumstances, except where the states concerned agree
otherwise, the right to self-determination must not involve changes to existing
frontiers existing at the time of independence (uti possidetis juris).” 50 Thus,
43.
See, e.g., In re Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicar. v. Hond.), Judgment, 2007 I.C.J. 661, 706 (Oct. 8)
(stating that “[i]t is beyond doubt that the uti possidetis juris principle is applicable to the
question of territorial delimitation between Nicaragua and Honduras, both former Spanish
colonial provinces” while finding no clear evidence on provincial boundaries, and therefore
ruling that “the principle of uti possidetis affords inadequate assistance in determining
sovereignty over these islands because nothing clearly indicates whether the islands were
attributed to the colonial provinces of Nicaragua or of Honduras prior to or upon
independence.”).
44.
In re Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J. 554, 566 (Dec. 22).
45.
Id. at 565.
46.
Id.
47.
Id. at 566.
48.
Id.
49.
See supra notes 7, 9, 11 and accompanying text; Shaw, supra note 5, at 106–
11.
50.
Conference on Yugoslavia Arbitration Commission, Opinion No. 2 (Jan. 11,
1992). The full text of the opinion is quoted in Alain Pellet, The Opinions of the Badinter
2016]
UTI POSSIDETIS JURIS
643
“except where otherwise agreed, former republican borders become international
frontiers protected by international law.” 51 Importantly, in all these cases, the
absence of a colony preceding independence was no barrier to the application of
uti possidetis juris. The doctrine applied as in all other cases of newly independent
states, and it transformed the pre-independence administrative boundaries (in this
case, between federal republics) into the boundaries of the new states.
Of course, states are free to rearrange their boundaries voluntarily, subject
to the consent of neighbors or other relevant parties. The borders established by uti
possidetis juris can be changed by treaty or by any of the other means recognized
by international law, including, in exceptional cases, by acquiescence. 52
Nonetheless, cases like Yugoslavia make clear that in the absence of an agreedupon redrawing of the borders, uti possidetis juris retains its primacy in
determining the borders of newly independent states.
Uti possidetis juris is not without its critics. By transforming colonial and
administrative lines into national borders, the doctrine repurposes the lines to a
task they were not meant to fill. The administrative and colonial lines may have
been drawn for purposes that served the former sovereign, without regard to
topography or local needs.53
Nonetheless, there are strong reasons why uti possidetis juris has
prevailed as a rule of customary international law. It is a strong force for stability
of borders, and it serves to reduce conflict. While uti possidetis juris seemingly
legitimizes arbitrary colonial decisions and undermines self-determination,
empirical research suggests that “borders drawn along previously existing
international or external administrative frontiers experience fewer future territorial
disputes and have a much lower risk of militarized confrontation if a dispute
emerges.”54
The normative dispute about uti possidetis juris has been translated into a
doctrinal dispute as well. Several scholars have argued against the conclusions of
the Badinter Commissions and against the extension of uti possidetis juris into
situations where a single state is broken apart by dissolution or secession. 55
However, there appears to be little doubt as a descriptive matter that uti possidetis
juris applies to post-colonial and post-Mandate situations.
Arbitration Committee: A Second Breath for the Self-Determination of Peoples, 3 EUR. J.
INT’L L. 178, 182–85 (1992).
51.
Pellet, supra note 50, at 185.
52.
Shaw, supra note 5, at 141–47.
53.
See Enver Hasani, Uti Possidetis Juris: From Rome to Kosovo, 27 FLETCHER
F. WORLD AFF. (ISSUE 2) 85, 90 (2003); LALONDE, supra note 34, at 31.
54.
See David B. Carter & H.E. Goemans, The Making of the Territorial Order:
New Borders and the Emergence of Interstate Conflict, 65 INT’L ORG. 275, 275 (2011).
55.
Ratner, supra note 7, at 590; LALONDE, supra note 34, at 174.
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B. Applying the Doctrine
Using the doctrine of uti possidetis juris to resolve borders is relatively
straightforward. As the International Court of Justice explained in the Burkina
Faso case, the doctrine ensures that:
By becoming independent, [the] new State acquires sovereignty
with the territorial base and boundaries left to it by the
[administrative boundaries of the] colonial power. . . . [The principle
of uti possidetis juris] applies to the State as it is [at that moment of
independence], i.e., to the “photograph” of the territorial situation
then existing. The principle of uti possidetis [juris] freezes the
territorial title; it stops the clock . . . .56
As the International Court of Justice observed in the case of Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening),
uti possidetis juris is a “retrospective principle, investing as international
boundaries administrative limits intended originally for quite other purposes.”57 In
applying the doctrine, one does not ask whether the law at the time of the
“photograph” viewed the administrative lines as international boundaries. Indeed,
it is quite plain that the borderlines are not expected to have been international
boundaries at the time of the “photograph.” Thus, for instance, in the Burkina Faso
case, the court did not have to inquire whether uti possidetis juris was a binding
rule of international law at the time of decolonization. It was enough for the court
that uti possidetis juris was a binding rule of international law at the time the court
resolved the border dispute.
Uti possidetis juris thus constitutes an exception to what is known in
international law as the intertemporal rule. Under the intertemporal rule, one judge
judges the legal importance of acts affecting territorial sovereignty according to
the law that prevailed at the time of the act. For instance, one of the determinations
includes whether State A successfully acquired sovereignty over conquered
territory of State B according to the legal treatment of conquest at the time of the
capture, rather than under modern law, which looks skeptically at conquest.58 By
contrast, uti possidetis juris consciously and willingly reinterprets the legal
significance of past acts. Uti possidetis juris transforms into international
boundaries lines that in the past (just before the time of the “photograph”) were not
international boundaries.
The trick, of course, is determining the moment and the subject of the
“photograph.”
56.
In re Frontier Dispute (Burk. Faso/Mali), Judgment, 1986 I.C.J. 554, 568, ¶
30 (Dec. 22).
57.
In re Land, Island and Maritime Frontier Dispute (El Sal./Hond., Nicar.
intervening), Judgment, 1992 I.C.J. 351, 388 (Sept. 11).
58.
Malcolm Shaw, Introduction: The International Law of Territory: An
Overview, in TITLE TO TERRITORY xi, xviii (Malcolm Shaw ed., 2005).
2016]
UTI POSSIDETIS JURIS
645
In uti possidetis juris, as in other doctrines of international law affecting
border disputes, the outcome is strongly affected by “critical dates,” defined by
Malcolm Shaw as those “moment[s] at which the rights of the parties crystallize so
that the acts after that date cannot alter the legal position.”59 As Shaw notes, in
situations not involving uti possidetis juris, the identity of critical dates can be a
matter of some contention. If parties have embodied an explicit understanding in a
treaty, the treaty’s date of effectiveness constitutes an obvious “critical date,” but
in many other situations, the identity of the critical date is unclear. Uti possidetis
juris has no such ambiguity. As Shaw writes, it is “obvious that the moment of
independence is the ‘critical date.”60
Generally, the date of independence is easy to identify. For instance, in
the case of the border dispute between Eritrea and Ethiopia, the date of
independence was plainly April 27, 1993—the date upon which Eritrea joined the
United Nations, following the results of an independence referendum. 61 The
independence referendum was the last of all the necessary steps for Eritrean
independence. This is because Eritrea had already won functional possession of all
of its territory in a long civil war, had maintained an independent government
since 1991, and had secured Ethiopia’s agreement to abide by the results of the
referendum.62
Controversially, however, some have suggested earlier dates for
independence. The Badinter Commission posited that the boundaries of the states
that emerged out of the Federal Republic of Yugoslavia had their borders set by uti
possidetis juris from the time when Yugoslavia dissolved, even though the
component states had not yet fully established their independence. 63 Shaw suggests
a potential date that may better mark “independence” for purposes of uti possidetis
juris: the date of the last exercise of administrative jurisdiction by the former
sovereign. 64 This alternative date appears to have been the one used by the
Badinter Commission. Additionally, Shaw notes, there may be instances where
several states achieve independence at roughly the same time; in such a case, the
establishment of the border of one of the states may be the relevant date for
establishing the border of another state. 65 Consider, for instance, the case of
Czechoslovakia, which split into the states of Slovakia and the Czech Republic. If,
hypothetically, the Czech Republic had achieved independence six months before
Slovakia, then the critical date of the Slovak-Czech border would be the date of
Czech independence, rather than the date of Slovak independence.
59.
Id. at xxii.
60.
Id.
61.
Id.
62.
See Decision Regarding Delimitation of the Border between the State of
Eritrea and the Federal Democratic Republic of Ethiopia, Eritrea–Ethiopia Boundary
Commission, 12 ¶ 2.11 (Apr. 13, 2002).
63.
Pellett, supra note 50, at 185.
64.
Shaw, supra note 58, at xxii.
65.
Id.
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The subject of the “photograph” is far easier to identify. Where a single
state emerges from a given territory, the application of uti possidetis juris is easy.
As the International Court of Justice noted, one of the main purposes of using uti
possidetis juris is to avoid a situation in which there is terra nullius, i.e., territory
without a sovereign.66 That means that uti possidetis juris requires that the entire
territory become the sovereign territory of the newly independent state. A more
difficult question is posed when several states become independent at the same
time from a single territory, or when a state becomes independent in a part of
territory without the rest becoming terra nullius (such as when the new state
secedes from an existing colony, while the colonial power continues to retain
sovereignty over the remaining territory). In such a case the application of uti
possidetis juris can be more difficult. It is important to note that, as the
International Court of Justice emphasized in the Benin/Niger case, for purposes of
uti possidetis juris, what matters in a given territory is the governmental unit that
exercised actual administrative control prior to independence. 67
II. UTI POSSIDETIS JURIS AND MANDATORY BORDERS
Applying the doctrine of uti possidetis juris to new states created from
League of Nations Mandate territories requires understanding the nature of
Mandates. Mandates were a short-lived form of foreign rule of territory invented in
the wake of World War I. They were created in order to dispose of the colonial and
imperial possessions of the defeated German and Ottoman Empires.
The Mandate system implemented what was then a new principle in
international affairs—the self-determination of peoples. 68 At the same time, the
European powers were not yet completely ready to surrender their traditional
domination of international affairs, 69 or the perceived benefits that accompanied
colonialism. The resulting compromise was a new form of quasi-colonial rule,
defined by Article 22 of the Covenant of the new League of Nations. Borrowing
from the domestic laws of trust and of guardianship, the Covenant described
Mandates as a “sacred trust of civilization,” and it committed the right to control
the territories to the Mandatory powers (Britain and France, in most cases), subject
to the supervision of the League of Nations. The Covenant did not describe the
locus of sovereignty during the Mandatory period, and it did not fully describe the
relationship between the new legal form and older and more familiar ones, leading
to some confusion among legal scholars.70
66.
In re Land, Island and Maritime Frontier Dispute (El Sal./Hond., Nicar.
intervening), Judgment, 1992 I.C.J. 351, 386–87 (Sept. 11).
67.
In re Frontier Dispute (Benin/Niger), Judgment, 2005 I.C.J. 90 (July 12).
68.
See CAMPBELL L. UPTHEGROVE, EMPIRE BY MANDATE: A HISTORY OF THE
RELATIONS OF GREAT BRITAIN WITH THE PERMANENT MANDATES COMMISSION OF THE
LEAGUE OF NATIONS 12 (1954).
69.
See LASSA OPPENHEIM, INTERNATIONAL LAW: A TREATISE 36–37 (3d ed.
1920–21).
70.
See QUINCY WRIGHT, MANDATES UNDER THE LEAGUE OF NATIONS 70 (1930).
2016]
UTI POSSIDETIS JURIS
647
Fourteen non-self-governing territories were placed under the Mandatory
system: three from the Ottoman Empire, and the others from Germany. The
Mandates that emerged from the Ottoman Empire were Syria and the Lebanon,
Mesopotamia, and Palestine. The Mandates that emerged from Germany were
British Cameroons, British Togoland, French Cameroons, French Togoland,
Nauru, Ruanda-Urundi, South Pacific Mandate, South-West Africa, Tanganyika,
the Territory of New Guinea, and Western Samoa. 71 All of the territories were
governed by a trustee state (called a Mandatory), subject to the supervision of the
League of Nations and under a regime defined by a League of Nations charter
(called a Mandate). The powers of the Mandatory differed by type of Mandate; in
some cases, the Mandatory was entitled to govern the territory in a manner
indistinguishable from a traditional colony, while in others, the powers of the
Mandatory were more circumscribed and the territory close to a protectorate state.
The Mandates were classified as A-, B-, or C-type Mandates, depending on the
degree of authority of the Mandatory (greatest in the case of type C, lowest for
type A).72
Mandates were eventually eased out of the international system. Some of
the Mandates became independent states before World War II. After World War II
and the dissolution of the League of Nations, most of the remaining Mandates
were transformed into United Nations trust territories, and the others were
eventually dissolved. The sole controversial exception was South-West Africa,
which South Africa initially attempted to annex, but which eventually became the
independent state of Namibia.73
In the context of Mandates, one of the perennial problems in applying uti
possidetis juris is the history of instability of pre-independence administrative
lines. In some cases, the Mandates were granted without clear borders ever having
been determined. As we will see,74 the borders of Mandatory Palestine generated
intense interest during the Mandatory period. The boundaries were set only after
several years, and border demarcation was followed by numerous suggestions to
redraw the Mandatory borders. In addition, the Palestine Mandate was divided in
two. But the Palestine Mandate was not unique in the degree or nature of
controversy it generated regarding boundaries. This is not surprising, in that—as
with all Mandates—the border-drawing process involved myriad geographic
questions and trade-offs in great-power politics, as well as incompatible promises
to various ethnic groups.75
71.
Mandate,
ENCYCLOPÆDIA
BRITANNICA
ONLINE,
http://www.britannica.com/topic/mandate-League-of-Nations. (last visited July 21, 2016).
72.
For a history and explanation of Mandates in international law, see generally
H. DUNCAN HALL, MANDATES DEPENDENCIES AND TRUSTEESHIP 44–52 (1948);
UPTHEGROVE, supra note 68, at 17–18; WRIGHT, supra note 70, at 43–48.
73.
See MICHAEL DENNIS CALLAHAN, A SACRED TRUST: THE LEAGUE OF
NATIONS AND AFRICA, 1929–1946, at 42–43 (2004).
74.
Infra Part III.
75.
See UPTHEGROVE, supra note 68, at 70–71.
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In numerous situations, Mandatory borders created controversies
regarding territorial sovereignty with neighboring nations, ethnic selfdetermination, coherence and independence, and resource allocation. These
controversies, which often involved considerable equities on both sides, resulted in
proposals for cession, partition, and joinder of Mandatory territories that were
entertained by the Mandatories, the League, and various commissions of inquiry
during the Mandatory period. In most cases, the original Mandatory borders did
not change as a result of these controversies.
Notably, even in the most heated of these disputes, the Mandatory borders
as they existed at the moment of independence have been universally regarded as
the final, settled borders of the successor nations. Such now-arcane matters as the
Mosul Question (1920s), 76 the Alexandretta controversy (1930s), 77 and the Ewe
Question (1950s) 78 once preoccupied the League and then its successor United
Nations Trusteeship Council. These matters centered on the validity of Mandatory
boundaries for successor states. Yet once the Mandatory regime expired, the
borders as they stood at the moment of independence have universally been taken
as givens, and the prior controversies relegated to historical curiosities. This
remains the case even when neighboring states or internal ethnic groups continued
to dispute the Mandatory dispensation after independence.
A. The Mandate of Mesopotamia
The British Mandate for Mesopotamia was a “Class A” Mandate, and it
was the first Mandate to receive independence. The Mandate experienced almost
immediate upheaval. After the proposed award of the Mandate, and prior to its
approval by the League of Nations, the British faced unrest throughout the country,
and they eventually redubbed the territory the Kingdom of Iraq. 79 The Mandate
generated two major border disputes that attracted international attention: one in
the north, and one in the south. The northern dispute concerned sovereignty over
the oil-rich Mosul region, with competing territorial claims by neighboring
nations, as well as self-determination claims by the Kurds, a nonstate group.80 The
southern dispute concerned the border with the Gulf States, which focused on
strategic and economic viability concerns. 81 At various times, these disputes each
resulted in both open hostilities and appeals to international organs. And the end
result was the same—the confirmation of the borders as eventually established by
the Mandatory.
76.
77.
78.
79.
See infra Section II.A.1.
See infra Section II.B.2.
See infra Section II.C.
THE ROUTLEDGE HANDBOOK OF THE HISTORY OF THE MIDDLE EAST
MANDATES 5 (Cyrus Schayegh & Andrew Arsan, eds.) (2015).
80.
PETER SLUGLETT, BRITAIN IN IRAQ: CONTRIVING KING AND COUNTRY 65–93
(2007); H.I. Loyd, The Geography of the Mosul Boundary, 68 GEOGRAPHIC J. 104, 104–05,
113 (1926).
81.
See SLUGLETT, supra note 80, at 65–93.
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UTI POSSIDETIS JURIS
649
1. The Mosul Question
Sovereignty over the Mosul Vilayet, an oil-rich area in northern Iraq, was
one of the most serious controversies about Mandatory borders. 82 The “Mosul
Question” led to significant tension and occasional border skirmishes between
Turkey, which claimed the area, and Britain, the Mandatory power.
The Mesopotamian Mandate was first agreed upon among the Allied
Powers in the San Remo conference in Italy, 83 and then between the Allied Powers
and Turkey (formerly the Ottoman Empire) in the ill-fated Treaty of Sèvres in
1920.84 Turkey failed to ratify the treaty, 85 and it would take until 1923 for the
Allied Powers and Turkey to agree on a replacement peace treaty—the Treaty of
Lausanne.86 In the meantime, the British moved forward to create the governing
structure of a Mandate without Turkish agreement. In 1920, the British unilaterally
began implementing the draft Mandate for “Mesopotamia including Mosul” 87 it
had submitted to the League of Nations for approval. The Anglo-Iraqi Treaty of
Alliance of 1922,88 reached two years later, ratified most of the draft terms of the
Mandate, and in 1924, the League finally retroactively approved the Mandate, and
the Anglo-Iraqi Treaty as an implementation thereof. 89
The question of the Iraqi-Turkish frontier was reopened during
negotiations in Lausanne in November 1922. 90 The British agreed that a peace
treaty with Turkey would need to determine the “southern frontier of the Turkish
82.
See generally Nevin Coşar & Sevtap Demirci, The Mosul Question and the
Turkish Republic: Before and after the Frontier Treaty, 1926, 42 MIDDLE EASTERN STUD.
123, 126–27 (2006); Quincy Wright, The Mosul Dispute, 20 AM. J. INT’L L. 453, 453–64
(1926).
83.
San Remo Resolution, Fr.-Ger. Gr. Brit.-It.-Japan, § (b), Apr. 25, 1920,
http://www.cfr.org/israel/san-remo-resolution/p15248.
84.
Treaty of Peace Between the British Empire and Allied Powers, Croat–Fr.–
Greece–Ger.–Gr. Brit.–It.–Japan–Rom.–Serb–Slovene State–Turk., Aug. 10, 1920, 113
Brit. & Foreign St. Papers 652 [hereinafter Treaty of Sèvres].
85.
HANS-LUKAS KIESER, TURKEY BEYOND NATIONALISM: TOWARDS POSTNATIONALIST IDENTITIES 58 (2006).
86.
Treaty of Peace, Fr.– Greece–Gr. Brit.– It.–Japan–Rom.–Serb-Croat-Slovene
State–Turk., July 24, 1923, 28 L.N.T.S. 11 [hereinafter Treaty of Lausanne].
87.
Draft Mandates for Mesopotamia and Palestine: As Submitted for the
Approval
of
the
League
of
Nations,
Dec.
1,
1920,
http://www.archive.org/stream/draftmandatesfor00leagrich/draftmandatesfor00leagrich_djv
u.txt.
88.
Treaty of Alliance Between Great Britain and Irak, Gr. Brit.–Irak, Oct. 10,
1922, 35 L.N.T.S. 13, http://www.galeuk.com/iraq/pdfs/Treaty%20of%20alliance%20btw%
20GB%20&%20Iraq%2010%20Oct%201922%20CO%20730%20167%201.pdf.
89.
See Request of the Kingdom of Iraq for Admission to the League of Nations:
Memorandum from the Iraqi Government, League of Nations Doc. A.171932.VII, §1 ¶ 2
(1932), http://www.ringnebula.com/Oil/Iraq_1932_LeagueofNations.htm.
90.
For a history of the convoluted diplomatic chain of events, see generally
DAVID FROMKIN, A PEACE TO END ALL PEACE: CREATING THE MODERN MIDDLE EAST, 1914–
1922, at 559–60 (1989).
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dominions in Asia.”91 Nonetheless, negotiations went poorly, with Turkey firmly
insisting on its title to the region. In the 1923 Treaty of Lausanne, the parties
agreed to negotiate the frontier for another year and then to submit the matter to
the League Council. 92 The Council, for its part, appointed an investigative
commission to examine the matter. 93 After obtaining an opinion from the
Permanent International Court of Justice to confirm the Council’s power to make a
“definitive determination of the frontier,”94 the Council accepted the commission’s
report, which fixed the border at the status quo line of control, thus giving Mosul
to the Mandate of Iraq (as Mesopotamia was then called). 95
The region was predominantly Kurdish, and the wishes of the local
population were nominally considered by the commission of inquiry, though only
through loose consultations with representatives of various ethnic groups.96 These
discussions were weighted by the presumed population share of that ethnic group,
with the assumption that all ethnic groups had homogenous preferences. (Turkish
suggestions to hold a plebiscite were repeatedly rejected.) 97 The only options
posed to the Kurds were Turkish sovereignty or a British-administered Mandate. A
separate Kurdish state was not considered, though the British had entertained the
possibility of one in the years immediately after the war. 98
After Iraqi independence in 1932, the border decisions of the League
were treated as conclusively settling both Turkish claims to territorial sovereignty
as well as any potential Kurdish claims to territory for the exercise of selfdetermination. Despite the extreme discord over Mosul—which included sporadic
British hostilities with both Kurds and Turks during the period when the frontiers
were being negotiated—the League’s determination is considered to have
conclusively settled the matter. The Mandatory borders have become the modern
borders of Iraq and Turkey, to the disappointment of the area’s Kurdish majority.
91.
Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory Opinion, 1925
I.C.J. (ser. B) No. 12, at 10 (Nov. 21).
92.
Id. at 13.
93.
See FROMKIN, supra note 90.
94.
Article 3, Paragraph 2, of the Treaty of Lausanne, supra note 91, at 33.
95.
Question of the Frontier Between Turkey and Iraq: Report Submitted to the
Council of the League of Nations by the Commission Instituted by the Council Resolution,
League of Nations, September 30th, 1924; see also Wright, supra note 82, at 453.
96.
Fuat Dunbar, “STATISQUO”: BRITISH USE OF STATISTICS IN THE IRAQI
KURDISH
QUESTION
(1919–1932)
23
(2012),
http://www.brandeis.edu/crown/publications/cp/CP7.pdf.
97.
1 ANTHONY D’AMATO, INTERNATIONAL LAW AND POLITICAL REALITY
COLLECTED PAPERS 346 (1995).
98.
See ZEYNEP ARIKANL, BRITISH LEGACY AND EVOLUTION OF KURDISH
NATIONALISM IN IRAQ (1918–1926): WHAT SIGNIFICANCE THE ‘MOSUL QUESTION’? 9–17
(Centro Argentino de Estudios Internacionales, Working Paper No. 16),
http://www.caei.com.ar/sites/default/files/16_1.pdf. The Treaty of Sèvres provided that in
the event Turkey created an independent state of Kurdistan and renounced sovereignty, “no
objection will be raised by the Principal Allied Powers to the voluntary adhesion to such an
independent Kurdish State of the Kurds inhabiting that part of Kurdistan which has hitherto
been included in the Mosul Vilayet.” Treaty of Sèvres, supra note 84, at art. 64.
2016]
UTI POSSIDETIS JURIS
651
Today, significant ongoing Kurdish demands for independence in Iraq (and
Syria)—sounding in self-determination—have failed to overcome the uti possidetis
juris presumption of the Mandatory borders. 99 Indeed, numerous autonomous
governments in the area that have subsequently arisen, such as the present-day
Kurdish Regional Government, have failed to win recognition as states because of
the legal inertial force of the Mandatory border.
2. Iraqi-Kuwaiti Border
Upon the establishment of the Iraqi Mandate in May 1920, the southern
border of the Mandate was no more defined than the northern border. Indeed, all of
Iraq’s borders were undefined, 100 including the boundary between southern
Mesopotamia and the countries and protectorates in the Arabian Peninsula. At the
time, borders within the Arabian Peninsula were also in flux. The Saudis were
rapidly consolidating their power, and creating what would eventually become
known as Saudi Arabia. In May 1922, in the Treaty of Mohammara, 101 and then in
more detail in December 1922, in the Uqaair Protocol, 102 the British defined a
border between Iraq and the Najd (later Saudi Arabia). The Uqaair Protocol also
addressed the border with Kuwait, which was then a British protectorate.103 The
boundary delimitation was the first ever in the Arabian Desert. The boundary
between Iraq and Kuwait was entirely artificial, and intended to serve the needs of
British policy.104 It was resented by the Kuwaitis, as it greatly reduced the size of
the emirate.105
Upon the end of the Mandate in 1932, the newly independent state of Iraq
opposed British proposals to demarcate the border with Kuwait more precisely.
Iraq thought the Mandatory border gave it far too little access to the sea and
99.
See generally LIONEL BEEHNER, “THE IRAQI KURDISH QUESTION” (Council
Foreign Rel. 2007), http://www.cfr.org/turkey/iraqi-kurdish-question/p13136.
100.
STEPHEN MANSFIELD, THE MIRACLE OF THE KURDS: A REMARKABLE STORY
OF HOPE REBORN IN NORTHERN IRAQ 74–76 (2014). The borders between Iraq and Syria
were also undefined, and ultimately were created by a series of treaties between Britain and
France. Franco-British Convention on Certain Points Connected with the Mandates for
Syria and the Lebanon, Palestine and Mesopotamia, 16 AM. J. OF INT’L L. (SUPPLEMENT)
122, 122–26 (1922); see also 1 LAWRENCE MARTIN AND JOHN REED, THE TREATIES OF
PEACE, 1919–1923 (2006).
101.
See U.S. DEP’T ST., INTERNATIONAL BOUNDARY STUDY NO. 111 IRAQ-SAUDI
ARABIA BOUNDARY 10 (1971) [hereinafter Iraq-Saudi Arabia Boundary Study].
102.
Agreement Concerning the Boundary Between Nejd and Kuwait, Kuwait–
Nejd,
Dec.
2,
1922,
1750
U.N.T.S.
531,
533,
https://treaties.un.org/pages/showDetails.aspx?objid=08000002800b3b06. The northern part
of Kuwait’s border with Iraq follows the Anglo-Turkish Agreement of July 29, 1913.
103.
The border was established through a Protocol to the Treaty of Muhammarah
of 1922. See supra note 102, at 533; Iraq-Saudi Arabia Boundary Study, supra note 101, at
10.
104.
Iraq-Saudi Arabia Boundary Study, supra note 101, at 13.
105.
See H.R.P. DICKSON, KUWAIT AND HER NEIGHBOURS (1956) (“At the Uqair
Conference . . . Sir Percy drew border of Iraq and Gulf States, giving territory claimed by
Saudis to Iraq, and clamed by Kuwait to Saudis, and creating two neutral zones.”).
652
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[VOL. 58:633
unjustly assigned two strategic Gulf islands to Kuwait. 106 Thereafter, successive
Iraqi governments refused to recognize the British-drawn border. At a minimum,
they claimed the two islands. More broadly, they argued that Kuwait was an
integral part of Iraq, unjustly detached by the British. 107 When Kuwait became
independent in 1961, Iraq mobilized troops and threatened to annex the new
country, a move forestalled by the deployment of British troops. 108 In 1990, Iraq
did invade Kuwait, and claimed to acquire sovereignty over the “nineteenth
province.”109
The Iraqi position never generated any international support. The 1990
Iraqi capture of Kuwait was forcibly reversed in 1991. 110 In the aftermath of the
1991 Gulf War, the U.N. Security Council created a border demarcation
commission that established the Iraqi-Kuwaiti border along the Mandatory lines.111
The Mandatory border with Saudi Arabia also created an unusual and
anomalous feature: a diamond-shaped “neutral zone” between the countries. 112
This feature of the Mandatory borders persisted into independence, until it was
eliminated through an agreed-upon partition between the two countries. 113
B. The Mandate of Syria
The French Mandate for Syria and the Lebanon was subject to a series of
violent and protracted disputes over borders. During the Mandate, France at
various times partitioned, ceded, and reapportioned parts of the mandated territory.
The borders it established were all contested on territorial-sovereignty and ethnicself-determination grounds. Some of the border actions by the Mandatory were
manifestly illegal at the time they were taken. Nonetheless, the borders of both
Lebanon and Syria followed the territorial arrangement at the end of their
respective Mandates.
106.
E. LAUTERPACHT ET AL., THE KUWAIT CRISIS: BASIC DOCUMENTS 80 (1990).
Kuwait enjoyed 310 miles of coastline, and Iraq, only 36. See Bishara A. Bahbah, The
Crisis in the Gulf—Why Iran invaded Kuwait, in BEYOND THE STORM: A GULF CRISIS
READER 50–51 (Phyllis Bennis & Michael Moushabeck eds., 1991).
107.
Id.
108.
Iraq complained to the Security Council that Kuwait was “part of its
territory.” U.N. SCOR, 16th Sess., 960th mtg. at 2, U.N. Doc. S/PV.960 (July 7, 1961),
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.960.
109.
See EYAL BENVENISTI, THE LAW OF OCCUPATION 150 (2004).
110.
See generally RICHARD LOWRY, THE GULF WAR CHRONICLES: A MILITARY
HISTORY OF THE FIRST WAR WITH IRAQ (2008).
111.
See S.C. Res. 773, ¶¶ 2–4 (Aug. 26, 1992); U.N. Secretary-General, Letter
dated May 21, 1993 from the Secretary-General to the President of the Security Council,
app. at ¶¶ 27–40, U.N. Doc S/25811 (May 21, 1993).
112.
See PHEBE MARR, THE MODERN HISTORY OF IRAQ 2 (1985).
113.
See Saudis and Iraq Sign Pact Ending Border Dispute, N.Y. TIMES (Dec. 28
1981), http://www.nytimes.com/1981/12/28/world/saudis-and-iraq-sign-pact-ending-borderdispute.html.
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UTI POSSIDETIS JURIS
653
1. Lebanon
At the San Remo Conference in 1920, the Allied Powers agreed to bestow
upon France the “Mandate for Syria.”114 The Mandate was also included in the illfated Treaty of Sèvres in 1920.115 Because Turkey failed to ratify the Treaty of
Sèvres, France unilaterally began implementation of what was then called the
Mandate for Syria and the Lebanon in 1920, before later receiving League
approval in 1922.116
As its name suggests, the Mandate was actually comprised of several
distinct territories, though their boundaries were not defined by the Mandate.
France eventually divided the Mandate into six states. On September 1, 1920,
General Gouraud proclaimed the establishment of the “State of Greater
Lebanon.” 117 (The “State of Damascus” was established two days later.) 118 In
1926, the French established the Lebanese Republic, transforming Greater
Lebanon into a state with a constitution and democratically elected government. 119
In 1943, the Free French government held elections and ended the Mandate in
November, with Lebanon becoming an independent state. Syria would become
independent on April 17, 1946, at the end of the war. 120
Geographically, Lebanon was based on the Mutasarrifia of Mount
Lebanon, an autonomous Maronite Christian area that had been detached from
Syria in 1861 under European pressure. However, in 1920, France also seized
predominantly Muslim regions of Syria (formerly the Ottoman vilayet of
Damascus), including the port of Tripoli and the Bekka hinterland, and annexed
them to the new Lebanon.121 The creation of the larger Lebanese state was widely
seen as a move to strengthen France’s Christian allies and punish Syria for its 1920
rebellion against French rule.122
The borders established and reestablished by the Mandatory were
strongly opposed by Arab nationalist supporters of a “Greater Syria.” They also
received a hostile reception from the Muslim population of the reassigned areas, as
the move effectively put them under Christian rule.123 In addition to raising historic
114.
San Remo Resolution, supra note 83, at § (c).
115.
Treaty of Sèvres, supra note 84, at art. 94 § 7.
116.
French Mandate for Syria and Lebanon, 17 AM. J. INT’L L. (SUPPLEMENT)
177, 177–82 (1923); see generally PHILIP SHUKRY KHOURY, SYRIA AND THE FRENCH
MANDATE: THE POLITICS OF ARAB NATIONALISM, 1920-1945, at 77–82 (2014).
117.
See KAIS FIRRO, INVENTING LEBANON: NATIONALISM AND THE STATE UNDER
THE MANDATE 15–30 (2003).
118.
See EMMA JORUM, BEYOND SYRIA’S BORDERS: A HISTORY OF TERRITORIAL
DISPUTES IN THE MIDDLE EAST 19 (2014).
119.
See LEBANESE CONSTITUTION, May 23, 1926. The Lebanese Constitution,
promulgated in 1926, is still in force (with amendments) today.
120.
See FIRRO, supra note 117, at 21.
121.
See JORUM, supra note 118, at 53; FIRRO, supra note 117, at 79.
122.
See FIRRO, supra note 117, at 84
123.
MEIR ZAMIR, LEBANON’S QUEST FOR NATIONAL IDENTITY 1926–1939 5 (2d
ed. 2000).
654
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[VOL. 58:633
and ethnic claims, Syrians pointed out that the annexation of Syrian areas to
Lebanon put Damascus within easy reach of the Lebanese border and gave Beirut
control of vital rail and shipping routes. 124 Throughout the 1920s, Syrian leaders
continued to demand the return of the detached regions, or at least the port of
Tripoli.125
Arab nationalists regarded Lebanon as an “artificial creation” that
destroyed the territorial integrity of Syria. 126 These claims were pressed during the
1926 Syrian revolt, which led the French to suggest revising the 1920 division by
“surrendering” Tripoli back to Syria.127 Tripolitan Sunnis petitioned the League of
Nations, arguing that they had been incorporated into the Lebanese state “without
their agreement or consent.” 128 The Syrians also continued to argue that Syrian
territory could not be prescribed by the Mandatory and that the doctrine of national
self-determination further undermined the legitimacy of the Lebanese
annexation. 129 However, the plan to “surrender” Tripoli was not implemented.
Since the termination of the Mandate and the independence of Lebanon, the
country has been regarded as having the borders as modified by the French
annexation of the four Syrian districts. 130
2. Alexandretta/Hatay
During its administration of Syria, France created a number of
administrative units. The Sanjak of Alexandretta was an autonomous subunit of
Aleppo. The Sanjak consisted of 1800 square miles of land on the Mediterranean
coast of Syria, bordered on the west by the Gulf of Iskendrun and Turkey to the
north, and including the cities of Antioch and Alexandretta. The area has a highly
heterogeneous population, composed of Turks, Sunni Arabs, Alawites, Armenians,
and many other groups.131
France, the Mandatory for Syria and the Lebanon, concluded a separate
peace agreement with Turkey in 1921, which guaranteed a special regime for
Alexandretta with rights for the Turkish population. 132 Pursuant to this, Turkey
renounced all claims to the territory and France guaranteed linguistic and other
minority rights to the Turkish population in the territories under its control. 133
124.
Id.
125.
See id. at 7–17.
126.
See JORUM, supra note 118, at 54–57.
127.
See generally MICHAEL PROVENCE, THE GREAT SYRIAN REVOLT AND THE
RISE OF ARAB NATIONALISM (2009).
128.
DANIEL PIPES, GREATER SYRIA: THE HISTORY OF AN AMBITION 63 (1992).
129.
See generally JORUM, supra note 118.
130.
See S. C. Res. 1559, ¶ 1 (Sep. 2, 2004).
131.
See generally YÜCEL GÜÇLÜ, THE QUESTION OF THE SANJAK OF
ALEXANDRETTA (2001).
132.
Treaty of Ankara, Fr.–Turk., art. 7–8, Oct. 20, 1921, 54 L.N.T.S. 178–93.
133.
See generally Robert B. Satloff, Prelude to Conflict: Communal
Interdependence in the Sanjak of Alexandretta 1920-1936, 22 MIDDLE E. STUD. 147 (1986).
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UTI POSSIDETIS JURIS
655
These arrangements were affirmed in the next few years in the Treaty of Lausanne,
as well as other agreements.134
Thus, Hatay was a part of Syria, and Turkey had renounced any
sovereignty claims there. 135 In 1936, France announced it would give Syria—
including Alexandretta—independence in a few years. This led Turkey to doubt
the continued validity of the minority protections it had secured for Alexandretta,
and, consequently, led a reenergized Turkish Republic to reopen claims to the area.
Istanbul’s legal grounds for title were quite obscure, and relied mostly on the
special administrative arrangements for Alexandretta that France had guaranteed.
The next several years were marked by riots and sectarian violence, apparently
instigated, at least in part, by Kemalist forces. While Turks were a plurality of the
population in the territory, they constituted perhaps only 39% of the population. 136
Ankara appealed to the League’s Mandates Commission, which responded on May
29, 1937, by requiring even greater autonomy for the territory, with a separate
legislature for internal matters, but nonetheless keeping it under Syrian sovereignty
and external control.137
Turkey continued to press for control over the territory, and eventually
France was willing to comply, apparently seeking to secure Ankara as an ally
against German expansion.138 Between 1937 and 1938, France agreed to at least
four different “solutions” to the Alexandretta issue “in an attempt to appease
escalating Kemalist claims.” 139 In 1938, Paris ignored the results of the local
assembly elections that opposed Turkish control, while allowing Ankara to send
troops to police the area. Growing concern about Germany led to an ever more
accommodating French policy. The transfer of Alexandretta to Turkey was
completed with a formal cession by France on June 23, 1939, without any approval
134.
See generally OFF. REPS. & ESTIMATES, U.S. CENT. INTELLIGENCE AGENCY,
THE HATAY QUESTION 15 (1947) [hereinafter CIA, HATAY QUESTION],
http://www.foia.cia.gov/sites/default/files/document_conversions/89801/DOC_0000256977
.pdf. A final demarcation of the Turkish-Syrian border by a commission took place in 1926.
See Majid Khadduri, The Alexandretta Dispute, 39 AM. J. INT’L L. 406, 408 (1946).
135.
See Elizabeth Picard, Retour au Sandjak, in MAGHREB-MACHREK 49 (1983);
see also Avedis K. Sanjian, The Sanjak of Alexandretta (Hatay): Its Impact on TurkishSyrian Relations (1939-1956),10 MIDDLE E. J. 379, 383 (1956) (noting Turkey had ceded
sovereignty claims in Alexandretta in favor of Syria, not France).
136.
See Satloff, supra note 133, at 154.
137.
See generally Collection of Texts Concerning the Sanjak of Alexandretta,
League of Nations Doc. C.282.M.183 (1937).
138.
See Sanjian, supra note 135, at 381.
139.
See Satloff, supra note 133, at 175. These arrangements ranged from ever
greater degrees of autonomy to a Franko-Turkish condominium.
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[VOL. 58:633
by the League. 140 The territory was incorporated into Turkey as the vilayet of
Hatay,141 and most of its non-Turkish inhabitants fled in the following years.
The transfer of Alexendretta to Turkey clearly violated the League’s
Mandate, which provided in Article 4 that “the Mandatory shall be responsible for
seeing that no party of the territory of Syria and the Lebanon is ceded or leased or
in any way placed under the control of a foreign power,” as well as the 1937
League decision about the status of the territory. 142 The legality of the French
action was criticized in a June 1938 meeting of the League Mandates Commission,
but the coming of World War II prevented the League from convening and taking
any action.143
The Syrian Mandate was terminated and Syria emerged as an independent
state on April 17, 1946.144 Syria did not recognize the cession of Hatay, and upon
independence planned to pursue the issue at the International Court of Justice or
the Security Council.145 However, chronic Syrian instability and a series of coups
in the first decade of independence prevented any vigorous response from
Damascus. 146 Syria never recognized Turkish sovereignty over the area, and it
continues to be a major obstacle to relations between the two countries in recent
times.147 Syria’s position is that the French cession was illegal and that Turkey is
an occupying power. Nonetheless, it appears that the entire international
community recognizes Hatay as being under Turkish sovereignty, and has since
1939.148
The Alexandretta/Hatay episode is quite significant for understanding the
application of uti possidetis juris to Mandates. The territory was severed from
Syria in gross contravention of the Mandate and the directives of the League, and
in serious tension with expressions of local democracy and self-determination. Yet
Turkish sovereignty is entirely undisputed by the international community, and
there is no evidence of protest since 1939.
140.
J.C. HUREWITZ, THE MIDDLE EAST AND NORTH AFRICA IN WORLD POLITICS:
A DOCUMENTARY RECORD-BRITISH-FRENCH SUPREMACY, 1914–1945, at 545 (J.C. Hurewitz
ed., 1979).
141.
D.H. Miller, My Diary at the Conference of Paris (1919), reprinted in THE
MIDDLE EAST AND NORTH AFRICA IN WORLD POLITICS 175 (J.C. Hurewitz ed., 1979); see
generally CIA, HATAY QUESTION, supra note 134.
142.
Khadduri, supra note 134 at 424; see also Sanjian, supra note 135, at 381–
82.
143.
See Khadduri, supra note 134 at 425; CIA, HATAY QUESTION, supra note
134.
144.
SAMI M. MOUBAYED, DAMASCUS BETWEEN DEMOCRACY AND DICTATORSHIP
xxii (2000).
145.
Sanjian, supra note 135, at 382–83.
146.
See KARL D. ROUEN, DEFENSE AND SECURITY: A COMPENDIUM OF NATIONAL
ARMED FORCES AND SECURITY POLICY 793 (2005).
147.
Emma Lundgren Jorum, Syria’s Lost Province: The Hatay Question Returns,
THE
CARNEGIE
ENDOWMENT
FOR
INT’L
PEACE
(Jan.
28,
2014),
http://carnegieendowment.org/syriaincrisis/?fa=54340.
148.
See id.
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UTI POSSIDETIS JURIS
657
The apparent paradox of international equanimity in the face of rampant
illegality can be easily understood once one considers the principle of uti
possidetis juris. While legally flawed, the transfer of Alexandretta to Turkey was
consummated while the Mandate was still in effect. When Syria became
independent, Alexandretta was no longer included in the Mandatory borders, and
the prior sovereign (the French Mandatory) no longer considered Alexandretta to
be within the boundaries of the Syrian Mandate. While the transfer may have been
illegitimate and was opposed by Syrian officials, it did change the Mandatory
boundaries as administered by the French. And uti possidetis juris applies to
administrative borders as they existed at the moment of independence; Syria came
into being without Hatay. Thus while France’s action may have violated its
international obligations, this does not weaken Turkish sovereignty or establish a
territorial claim for the independent Syrian republic. It is also important to note
that the various French partitions and cessions of Syrian territory themselves
proceeded along the lines of preexisting administrative units.
C. Togoland
Togoland had been a German protectorate on the coast of West Africa
since 1884. The Germans were ousted by a joint Anglo-French operation in 1914.
The territory was provisionally divided into British and French administrative
zones. The 1919 Milner-Simon agreement between Britain and France established
the boundaries, with only slight regard to ethnic considerations. 149 This partition
became the Mandatory borderline when the League confirmed Mandates for
British and French Togolands in 1922,150 covering respectively about two-thirds
and one-third of Togoland’s territory.
British and French Togolands, like all the former German African
territories, were designated as “Class B” Mandates.151 The borders of the “Class
B” Mandates were often drawn largely for the convenience of the Mandatory
power, as part of deals and global horse-trading among European states,152 rather
than based on self-determination, or other interests, of the local people. Thus,
Mandatory lines both split single ethnic groups and conjoined disparate ones. 153
Indeed, Lloyd George noted that under the League plan, “the country was cut into
149.
See generally PAUL NUGENT, SMUGGLERS, SECESSIONISTS AND LOYAL
CITIZENS ON THE GHANA-TOGO FRONTIER: THE LIFE OF THE BORDERLANDS SINCE 1914
(2002).
150.
France had hoped to keep the German West African territories out of the
Mandates system. See WILLIAM ROGER LOUIS, ENDS OF BRITISH IMPERIALISM: THE
SCRAMBLE FOR EMPIRE, SUEZ, AND DECOLONIZATION 281 (2006).
151.
JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 742
(2d ed. 2006).
152.
See LOUIS, supra note 150, at 281 (describing British and French crossMandate trading of territory).
153.
See Brian Digre, French Colonial Expansion at the Paris Peace Conference:
The Partition of Togo and Cameroon, 13/14 PROC. MTG. FRENCH COLONIAL HIST. SOC. 219,
221 (1990).
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small bits, and it would be found that half of a tribe was under a mandate, and the
other half was not.”154
After World War II and the collapse of the League, these Mandates
became trusteeship territories under the oversight of the United Nations and its
Trusteeship Council. 155 The British trusteeship territory (known as Togoland’s
Gold Coast) became part of the new independent Republic of Ghana in 1957, after
its population voted in favor of an independent state. 156 The French territory gained
independence as the Togolese Republic in 1960.157
British Togoland was by far the less economically developed of the two.
The UK administered the Mandate from its neighboring Gold Coast colony,
integrating it with the rail and commercial system. The British long favored the
notion of ultimately incorporating Togoland into the Gold Coast. Yet during World
War II, questions arose about the fate of British Togoland. The division of
Togoland split the Ewe people between the French and British sections. (Some
also lived on the Gold Coast.) The Ewe organized into a national movement that
favored a single political entity for the people. They pressed this issue at the UN
Trusteeship Council, in what for a decade would be known as the “Togo
Question.”158 The Ewe argued for “Ewe Unification,” while other ethnic groups
argued this would lead to “disintegration.” In particular, “pan-Ewe” groups argued
that division of the German colony between the British and French in 1919 was
arbitrary and could not be made permanent—the “natural” or historic political
boundaries were those of all of Togoland(s).159
The Trusteeship Council summarily ruled out any plan to combine the
two different territories.160 In 1954, Britain announced that it would promptly be
granting independence to the Gold Coast, and ending its trusteeship of
Togoland.161 This led to intensive discussions in the Trusteeship Council on the
future of the territory. Because of its administrative and economic integration with
the Gold Coast, it was widely thought Togoland could not stand alone and would
have to choose unification with the newly independent former British colony.162
After sending a mission of experts to the territory and studying their
report, the Council decided on conducting a referendum to determine Togoland’s
154.
155.
156.
157.
158.
Id.
CRAWFORD, supra note 151, at 742.
Id.; G.A. Res. 1044 (XI) (Dec. 13, 1956).
CRAWFORD, supra note 151, at 742; G.A. Res. 1416 (XIV) (Dec. 5, 1959).
GEORGE THULLEN, PROBLEMS OF THE TRUSTEESHIP SYSTEM: A STUDY OF
POLITICAL BEHAVIOR IN THE UNITED NATIONS 131–32 (1964). The Ewe were approximately
one-third to one-half the population of British Togoland, and half the population of the
French Togoland.
159.
For a history of pan-Ewe unification efforts under the Mandate, see D.E.K.
Amenumey, The Pre-1947 Background To The Ewe Unification Question: A Preliminary
Sketch, 10 TRANSACTIONS HIST. SOC’Y GHANA 65 (1969).
160.
See THULLEN, supra note 158, at 142–43.
161.
Id. at 150–51.
162.
Id.
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UTI POSSIDETIS JURIS
659
future. The crucial questions were the geographic scope of the plebiscite and the
options to be presented in the plebiscite. Upon British insistence, the referendum
question would only offer two choices—unification with the newly independent
Gold Coast, or a continuation of trusteeship. Unification with French Togoland
was not an option, though it might be the ultimate result of the second option. The
Mission report recommended that the territory be divided into four units for the
plebiscite, so that majorities in each could decide that unit’s future. It envisioned
the possible division of the territory.163 The Council rejected this proposal on the
grounds that the future of the territory had to be determined “as a whole.”164
The results of the plebiscite supported union with the Gold Coast, and the
General Assembly approved the dissolution of trusteeship “on the date that the
Gold Coast becomes independent and the union with it of the Territory of
Togoland under British administration takes place.”165 This took place on March 6,
1956, with the new unified state being known as Ghana. Thus, British Togoland’s
merger with the neighboring Gold Coast—and the elimination of the northern
1919 border—was simultaneous with the end of the international regime. In the
1960s and 70s, following the independence of French Togoland—now simply
called Togo—a new Ewe nationalist movement arose in the former British
Togoland. Ewe groups, organized as “Tolimo,” sought secession from Ghana and
union with Togo on the grounds that the Anglo-French partition was
illegitimate.166 These efforts attracted no international support and had no effect on
the borders.
D. Cameroon
The Cameroon area was part of the German colony of Kamerun until
occupied by British, French, and Belgian forces during World War I. The League
issued two “Class B” Mandates in 1922 covering different parts of Kamerun,
which, like Togoland, was partitioned between the British and French. Britain
received a Mandate for a long narrow sliver on the western end of the territory, 167
while the French received a Mandate for the bulk of Cameroun (defined as the
French West Africa). 168 The British divided their Mandatory territory into two
sections, Northern and Southern Cameroons, which were administered
separately—the latter directly as an autonomous province, and the former as part
of Nigeria. British Northern Cameroons was predominantly Muslim (like French
Cameroun), while the Southern Cameroons was predominantly Christian.169
163.
Id. at 157.
164.
Id. at 158.
165.
G.A. Res. 1044 (XI), supra note 156, at ¶ 2.
166.
See David Brown, Borderline Politics in Ghana: The National Liberation
Movement of Western Togoland, 18 J. MOD. AFR. STUD. 575, 575–605 (1980).
167.
See generally British Mandate for the Cameroons, art. 1, 17 AM. J. INT’L L.
138 (1923).
168.
French Mandate for the Cameroons, art. 1, League of Nations Doc.
C.449M.345(e) 1922 VI (1922); CRAWFORD, supra note 151, at 742–43.
169.
See generally Edwin W. Ardener, The Nature of the Reunification of
Cameroon, in AFRICAN INTEGRATION AND DISINTEGRATION: CASE STUDIES IN ECONOMIC
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[VOL. 58:633
The reunification of the arbitrarily partitioned territory of German
Kamerun by the Mandates became a prominent political cause after World War
II. 170 The British, however, resisted and marginalized calls for reunification.
Similarly, South Cameroonian efforts at independence of one or both of the British
Cameroons were ignored by the British. 171
The French-mandated territory declared independence as the Republic of
Cameroon in 1960.172 The U.N. General Assembly and Trusteeship Council then
called for a referendum in the British territories. As a result of the referendum in
1961, Southern Cameroons joined the Republic of Cameroon, while the Northern
territories joined Nigeria.173 In the British referendum, each administrative unit—
North and South—voted as a separate unit. Thus the referendum arrangement, like
the British administration of the Mandate, effectively partitioned the Mandate into
two separate territories. Moreover, in the referendum, the British Cameroons were
not given a choice of independence, only of union with Nigeria or the Republic of
Cameroon.174
Thus, the British and French Mandates for Cameroon gave rise to
numerous potential objections to the borders as they stood at the end of the
Mandates—objections to the impairment of territorial sovereignty by the Republic
of Cameroon, and objections to the denial of self-determination and improper
annexation by South Cameroonian secessionists. In the early 1960s, the Republic
of Cameroon objected to the outcome of the referendum process, noting that had
the vote of the British Cameroons been counted in a single district, the union with
the Republic would have prevailed.175 The International Court of Justice refused to
issue a judgment on the merits in the case, because the Republic of Cameroon
itself agreed that the union of Northern Cameroons and Nigeria had been
“consummated,” and that, therefore, the union could not be reversed. Instead, the
Republic of Cameroon requested a purely declaratory finding that such an action,
though irreversible, was wrongful. The Republic of Cameroon’s admission was
therefore a strong confirmation of the uti possidetis juris principle.176 There was no
question that even the wrongful administration and partition of the Mandate
against the sovereign rights of the Republic of Cameroon could not revise
POLITICAL UNION 285–337 (Arthur Hazlewood ed., 1967); E.J. Arnett, The French
Mandate in Cameroons, 37. J. ROYAL AFR. SOC’Y 191 (1938) (discussing French
administration of the Mandate).
170.
See Martin Z. Njeum, Reunification and Political Opportunism in the
Making of Cameroon’s Independence, 41 PAIDEUMA: MITTEILUNGEN ZUR KULTURKUNDE
27, 29–33 (1995) (Ger.).
171.
See CARLSON ANYANGWE, IMPERIALISTIC POLITICS IN CAMEROUN:
RESISTANCE & THE INCEPTION OF THE RESTORATION OF THE STATEHOOD OF SOUTHERN
CAMEROONS 33–34 (2008).
172.
G.A. Res. 1349 (XIII), ¶ 11 (Mar.13, 1959).
173.
G.A. Res. 1608 (XV), ¶ 6 (Apr. 21, 1961).
174.
ANYANGWE, supra note 171, at 34–35.
175.
See Northern Cameroons (Cameroon v. U,K.), 1963 I.C.J. 15, 17–18 (Dec.
2).
176.
See id. at 20.
AND
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UTI POSSIDETIS JURIS
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Nigeria’s borders as established at the end of the Mandate. 177 Indeed, in
subsequent border disputes between Nigeria and the Republic of Cameroon, the
International Court of Justice has confirmed that the border follows the AngloFrench partition of German Kamerun under the Mandates.178
A secessionist group emerged in southern Cameroon challenging the
unification with the Republic of Cameroon in 1961. It has apparently gained
strength in recent years and has reportedly faced violent suppression from the
Cameroonian government. 179 Today, a wide body of nationalist sentiment in
southern Cameroon still argues that the local population has never been allowed to
exercise its right of self-determination and that its land has been colonized by the
Republic of Cameroon.180
Southern Cameroonians challenged their incorporation into the Republic
of Cameroon to the African Commission of Human Rights, 181 which concluded
that the complainants represent a distinct people entitled to self-determination.182
In the oral arguments, the uti possidetis issue was raised by the commissioners.
The petitioners responded that South Cameroons was not part of the Republic of
Cameroon when the latter attained independence, which is certainly true, 183 but it
is the date of the termination of the Mandate and independence for the former that
matters for purposes of uti possidetis juris.
The South Cameroonian secessionists also argue that the plebiscite
procedure by which South Cameroons was incorporated upon the conclusion of the
British Mandate was improperly conducted in a way that did not allow for the
177.
Id. at 33–35.
178.
See Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nig.; Eq. Guinea Intervening), Judgment, 2002 I.C.J. Rep. 303 (Oct. 10).
179.
See Oscar Rickett, The Ignored Struggle for an Independent EnglishSpeaking Cameroon, VICE (Nov. 7, 2013), http://www.vice.com/read/english-speakingcameroonians-are-being-persecuted-for-wanting-a-state-of-their-own.
180.
See generally Fonkem Achankeng, Betrayal and Abandoment: Memory,
History, and Conflict Emotions in the Narratives of British Southern Cameroons’
Nationalists, in NATIONALISM AND INTRA-STATE CONFLICT IN POSTCOLONIAL AFRICA
(Fonkem Achankeng ed., 2014).
181.
See also the Nigerian court decision on this subject, discussed in Nelson
Enonchong, Foreign State Assistance in Enforcing the Right to Self-Determination Under
the African Charter: Gunme & Ors v. Nigeria, 46 J. AFR. L. 246 (2002), which ordered
Nigeria to institute an International Court of Justice action to determine whether Southern
Cameroons was properly incorporated into Cameroon in 1961.
182.
African Union, 26th Activity Report of the African Commission on Human
and Peoples’ Rights (ACHPR) Submitted in Accordance with Article 54 of the African
Charter on Human and Peoples’ Rights, Mgwanga Gunme v. Cameroon, Annex 4,
266/2003 (2009), http://www.chr.up.ac.za/images/files/documents/ahrdd/theme02/african_c
ommission_26th_activity_report.pdf.
183.
See generally MARTIN AYONG AYIM, FORMER BRITISH SOUTHERN
CAMEROONS JOURNEY TOWARDS COMPLETE DECOLONIZATION, INDEPENDENCE, AND
SOVEREIGNTY.: A COMPREHENSIVE COMPILATION OF EFFORTS AND HISTORICAL
DOCUMENTATION (Martin Ayong Ayim ed., 2010).
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exercise of self-determination.184 Nonetheless, the South Cameroonian challenges
to British South Cameroons’ joinder with Cameroon at the expiration of the
Mandate over the former have not won any international acceptance, despite their
colorable self-determination claim.185
The Cameroons Mandates illustrate several relevant points. Most
importantly, uti possidetis juris applies to Mandatory borders at the time of
independence, even when independence does not involve the self-determination of
the local people, and even when there is arguable illegality in the establishment of
borders and transfer of territory to other states by the Mandatory.
Additionally, Cameroon is an example of the application of uti possidetis
juris to partitions of a Mandate. The League authorized two Mandates that
partitioned German Kamerun. Britain then divided the British Cameroons into two
separately administered districts. The relevant uti possidetis juris unit was the
Mandatory administrative unit at the time of independence. Questions about preindependence partition, or demands for subsequent partition after the moment of
independence, gain no traction.
E. Partitions and Joinders—Ruanda-Urundi
It is worth noting several further situations involving the partition of
mandated territory (Lebanon was arguably a case of partition, and arguably a case
of quasi-annexation, as the division did not follow prior boundaries). While
partition has been urged in multiple contexts—Togoland for the Ewe; Syria along
multiple lines; Iraq for the Kurds—the only “partition plans” that affected
subsequent international borders were those that were implemented at or before the
moment of independence. This Article focuses here on one more case of partition,
namely, Ruanda-Urundi. This Article addresses the partition that created
Transjordan later as part of our broader analysis of the Palestine Mandate.186
The two kingdoms of Burundi and Ruanda were annexed to German East
Africa in the late nineteenth century. They fell under Belgian control in World War
I, and a Mandate was approved by the League of Nations in 1922. Belgium thus
became the administering State for the unified territory of Ruanda-Urundi.187 Upon
independence, by mutual consent, the territory divided into two new independent
Republics of Rwanda and Burundi on June 1, 1962. 188 These remain the
undisputed borders,189 despite their massive failure to accommodate ethnic realties.
The partition has made the Tutsis a minority in both countries, and the Hutus a
184.
See generally Piet Konings & Francis B. Nyamnjoh, The Anglophone
Problem in Cameroon, 35 J. MOD. AFR. STUD. 207 (1997).
185.
The African Commission dismissed the case for lack of temporal
jurisdiction.
186.
See infra Part III.
187.
MARTIN LAWRENCE, 1 THE TREATIES OF PEACE 1919–1923 xvi (2007).
188.
CRAWFORD, supra note 151, at 743; G.A. Res. 1746 (XVI), ¶ 1 (June 27,
1962).
189.
See U.S. DEP’T STATE, OFFICE OF THE GEOGRAPHER, INTERNATIONAL
BOUNDARY STUDY NO. 72, BURUNDI-RWANDA BOUNDARY 5 (1966).
2016]
UTI POSSIDETIS JURIS
663
majority, with well-known catastrophic results. 190 Nonetheless, post-genocide
suggestions to repartition the two parts of the Belgian Mandate into new ethnostates have been widely considered impossibly radical. 191
F. Exclaves: Walvis Bay (Namibia)
Walvis Bay, on the coast of what is now Namibia, had been established
by the Cape Colony in 1878, several years before the establishment of Namibia’s
predecessor colony, German South-West Africa. Walvis Bay had been explicitly
excluded from the borders of German South-West Africa upon its establishment in
1884.192 When the Union of South Africa was formed in 1910, Walvis Bay and
nearby islands became part of the new country.193
South African forces captured German South-West Africa during World
War I. In 1920, South Africa received a “Class C” Mandate from the League to
administer the territory.194 The mandated territory retained the borders of SouthWest Africa, which had been established by treaties in the late nineteenth century.
Walvis Bay was clearly not included in the Mandate. 195
Nonetheless, upon taking the South-West Africa Mandate, South Africa
“for reasons of expedience,” 196 from 1922 administered Walvis Bay as part of
South-West Africa, though the outlying islands continued to be directly
administered from the Cape Province. 197 At the same time, the relevant South
African legislation made clear that the territory remained an integral part of the
Cape Province, rather than South-West Africa.198
In 1966, the United Nations General Assembly adopted Resolution 2145
(XXI), asserting that it was terminating South Africa’s Mandate over South-West
Africa and creating its own direct administration. 199 The Resolution was highly
controversial as a legal matter, and its effect on the ground was limited because
South Africa refused to yield power and it continued its administration of the
190.
See generally GERARD PRUNIER, THE RWANDA CRISIS: HISTORY OF GENOCIDE
(1995).
191.
See, e.g., GODFREY MWAKIKAGILE, CIVIL WARS IN RWANDA AND BURUNDI:
CONFLICT RESOLUTION IN AFRICA 588–89 (2013).
192.
C. Hedlam, The Race for the Interior, in THE SOUTH WEST AFRICA/NAMIBIA
DISPUTE: DOCUMENTS AND SCHOLARLY WRITINGS ON THE CONTROVERSY BETWEEN SOUTH
AFRICA AND THE UNITED NATIONS 18, 20 (John Dugard ed., 1973).
193.
John Dugard, Namibia-South Africa: Treaty on Walvis Bay, 33 INT’L LEGAL
MATERIALS 1526, 1526 (1994).
194.
Mandated
Territory,
ENCYCLOPEDIA
BRITANNICA
ONLINE,
http://www.Britannica.Com/Topic/Class-C-Mandate (last visited Jan. 12, 2016).
195.
Ronald Dreyer, Dispute over Walvis Bay—Origins and Implications for
Namibian Independence, 83 AFR. AFF. 497, 503 (1984).
196.
See South Africa: Act to Provide for the Transfer to Namibia of the Territory
of and Sovereignty Over Walvis Bay and Certain Islands, 22 I.L.M. 1573, 1574 (1993).
197.
Dugard, supra note 193, at 1526.
198.
Dreyer, supra note 195, at 503.
199.
G.A. Res. 2145 (XXI), at 2–3 (Oct. 17, 1966).
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territory for several more decades. 200 In 1970, the International Court of Justice
ruled that Pretoria must withdraw from Namibia (the new name for South-West
Africa) to satisfy the latter’s right to self-determination. Faced with the possibility
of losing its administration of Namibia, South Africa in 1977 placed Walvis Bay
under the administration of the Cape Province.201
Namibia’s independence movement demanded a complete South African
withdrawal from the territory of South-West Africa—and also claimed Walvis Bay
as an integral part of the territory. 202
Some observers argued that the Namibian arguments were more political
than legal. Walvis Bay, though tiny in size, was of extraordinary economic and
strategic significance. It was Namibia’s only natural harbor and an important
transit point for trade and fishing. Some went so far as to argue that Namibia
would not be viable as a country without the harbor. 203 Moreover, South Africa’s
naval base there would allow for it to dominate the new State of Namibia.204
But Namibian nationalists made legal arguments as well. In particular,
they claimed that Namibia had rights to the coastal enclave as part of Namibian
“territorial integrity.” 205 They also claimed that since South Africa had
administratively treated Walvis Bay as part of South-West Africa, it had
functionally joined it to the Mandate, or, at the least, created a situation in which it
was estopped from arguing against such a claim. 206
South African sovereignty over Walvis Bay received significant
international acceptance, notwithstanding Namibian claims. 207 Moreover, the
United Nations Committee on South-West Africa regarded Walvis Bay as not
being part of the territory of South-West Africa, but rather a sovereign part of
South Africa.208 Similarly, the U.S. Department of State’s International Boundary
200.
See CARSTEN STAHN, THE LAW AND PRACTICE OF INTERNATIONAL
TERRITORIAL ADMINISTRATION: VERSAILLES TO IRAQ AND BEYOND 103–106 (2008);
BERNHARD KNOLL, THE LEGAL STATUS OF TERRITORIES SUBJECT TO ADMINISTRATION BY
INTERNATIONAL ORGANIZATIONS 96–108 (2008).
201.
“Walvis
Bay
Municipality,”
WHERE
TO
STAY,
http://walvisbaymunicipality.wheretostayonline.com (last visited Jan. 12, 2016).
202.
See RICHARD DALE, THE NAMIBIAN WAR OF INDEPENDENCE 117 (2014).
203.
See id. at 176.
204.
See VICTOR L. TONCHI ET AL., HISTORICAL DICTIONARY OF NAMIBIA 458
(2012).
205.
SURYA PRAKASH SHARMA, TERRITORIAL ACQUISITION, DISPUTES, AND
INTERNATIONAL LAW 32 (1997).
206.
See Gregory P. Goeckner & Isabelle R. Gunning, Note, Namibia, South
Africa, and the Walvis Bay Dispute, 89 YALE L.J. 903, 909 (1980).
207.
See JOHN DUGARD, THE SOUTH WEST AFRICA/NAMIBIA DISPUTE:
DOCUMENTS AND SCHOLARLY WRITINGS ON THE CONTROVERSY BETWEEN SOUTH AFRICA
AND THE UNITED NATIONS 531, 533 (1973) (George Kennan observing that the Bay’s
“status . . . as a complete South African coastal enclave has never been questioned” and it
would “remain under South African administration” upon Namibian independence).
208.
Comm. on South West Afr. to the Gen. Assembly, Rep. and Observations of
the Comm. on South West Africa Regarding Conditions in the Territory of South West
2016]
UTI POSSIDETIS JURIS
665
Study for South Africa/Namibia in 1972 concluded that “since annexation [in
1878] Walvis Bay has remained an integral part of Cape Colony or its successor,
the present Cape of Good Hope Province of the Republic (formerly Union) of
South Africa.” 209 Indeed, from after World War II until the mid-1970s, as the
dispute over South-West Africa intensified, “South Africa’s sovereignty in respect
of Walvis Bay was never questioned.”210 A series of International Court of Justice
advisory opinions and judgments about the territory treated Namibia as territorially
congruent with South-West Africa, and did not challenge the exclusion of Walvis
Bay from Namibia.
However, when South Africa put Walvis Bay back directly under its
administration in 1977, much of the world reacted unfavorably. A concerted effort
was made to give legal backing to Namibian claims to the enclave. This effort
found its greatest success in a General Assembly resolution which “declare[d] that
Walvis Bay is an integral part of Namibia” and “categorically condemn[ed] South
Africa for the decision to annex Walvis Bay, thereby attempting to undermine the
territorial integrity and unity of Namibia.”211
In the General Assembly meetings, African, Soviet-bloc, and Third World
nations overwhelmingly denounced the “colonialism” of the “racist regime” in
Pretoria and insisted that Walvis Bay was an integral part of Namibia. Western
nations, however, made clear that Namibia’s claim was not primarily a legal one,
and voiced their disagreement with the General Assembly Resolution, making
clear that their support for unification was due to “moral and pragmatic” rather
than legal reasons.212
One major argument for Namibian control over Walvis Bay was that
South Africa had administered it as part of Mandatory South-West Africa until
1977. This created a kind of estoppel—South Africa had treated Walvis Bay as
Africa, ¶ 10, U.N. Doc. A/291, supp. 12 (1955) (concluding that in international law “the
area remains nevertheless an integral part of the Province of the Cape of Good Hope”);
Comm. on South West Afr., Rep. and Observations of the Committee on South West Africa
Regarding Conditions in the Territory, ¶ 59 n. 28, U.N. Doc. A/3906 (1958) (noting that the
territory is “an integral part of South Africa” despite being “administered as part of South
West Africa”).
209.
OFF. OF THE GEOGRAPHER, U.S. DEP’T OF STATE, INT’L BOUNDARY STUDY
NO. 125: SOUTH AFRICA–NAMIBIA (SOUTH-WEST AFRICA) BOUNDARY 2 (1972). U.S.
Government maps clearly indicated Walvis Bay as part of South Africa, unlike Namibia.
See
Namibia
and
Walvis
Bay
(1978),
http://babel.hathitrust.org/cgi/pt?id=pur1.32754073481727;view=1up;seq=1.
210.
Albert J. Hoffman, Walvis Bay ¶ 9, MAX PLANCK ENCYCLOPEDIA (2009).
211.
G.A. Res. 32/9(D), ¶¶ 7–8, 22–23 (Nov. 4, 1977).
212.
See Statement by Representative of Austl., U.N. GAOR, 32nd Sess. 57th
plen. mtg. at 992, U.N. Doc. A/32/PV.57 (Nov. 4, 1977). Practical considerations were also
emphasized by African states, which spoke of “the impracticability of maintaining a foreign
presence in a country,” and recalling the recent “experience of India with Portuguese Goa.”
Of course, whether South Africa would be “in” Namibia was precisely the question to be
answered, and Goa cuts against Namibia, as Lisbon’s sovereignty was not questioned until
India’s 1962 conquest.
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“part” of Namibia and could no longer reverse that treatment. The argument,
however, is quite weak as South Africa always insisted that the administration did
not change the legal status of Walvis Bay, and was purely a matter of expedience.
Moreover, South-West Africa was a “Class C” Mandate, which the Mandatory
could administer as an integral part of its own territory—thus administering its
own territory with Mandatory territory should not change the status of the latter
absent express cession. Indeed, while Pretoria’s administrative status for Walvis
Bay certainly weakened the perceived legitimacy of its sovereignty in certain
quarters, it did not ultimately undermine it.
One point bears emphasizing: even the strongest argument against South
African sovereignty was principally an uti possidetis juris argument about
Mandatory borders. The Namibian argument took for granted that the only
possible lines for new states would be those of their Mandatory borders—and the
only question, therefore, was whether the pre-independence borders of Namibia
were properly understood to include Walvis Bay. 213
While in 1977 the General Assembly endorsed Namibian legal claims to
the territory—in a marked reversal of the Assembly’s position for the preceding
three decades—the Security Council rejected this approach. Instead, the Security
Council passed a resolution calling for the “reintegration” of Walvis Bay into
Namibia while it was under South African control. 214 The Security Council
resolution pointedly failed to repeat the legal conclusions of the Assembly, leaving
sovereignty over the territory “for negotiation between South Africa and
Namibia.” 215 More importantly, the Council did not include Walvis Bay in
Resolution 435, the major UN resolution promoting plans for Namibian
independence.216
As the United States made clear when it voted on Security Council
Resolution 432, the Council specifically decided to avoid adopting the Assembly
position on “disputes of a legal character concerning the various claims as to the
status of Walvis Bay.”217 The United States and other major powers further made
clear that they did not understand the resolution to prejudice South Africa’s legal
claims to the territory. Indeed, Cyrus Vance’s statement made clear that the call to
integrate Walvis Bay was based on policy considerations, not legal entitlement,
and did not involve accepting Namibia’s view that “Walvis Bay must be part of an
213.
There were some Namibian writers who nevertheless argued strenuously
against the application of the doctrine of uti possidetis juris, apparently in recognition of the
weakness of Namibian claims that the pre-independence administrative boundaries included
Walvis Bay. See, e.g., SAKEUS AKWEENDA, INTERNATIONAL LAW AND THE PROTECTION OF
NAMIBIA’S TERRITORIAL INTEGRITY: BOUNDARIES AND TERRITORIAL CLAIMS 46–47, 50–53
(1997).
214.
S.C. Res. 432, ¶ 1 (July 27, 1978).
215.
ROBERT JENNINGS & SIR ARTHUR WATTS, I OPPENHEIM’S INTERNATIONAL
LAW 307 n.43 (9th ed. 2008).
216.
See S.C. Res. 435 (Sep. 29, 1978).
217.
United Nations Security Council: Resolutions and Statements on Namibian
Independence, 17 I.L.M. 1308.
2016]
UTI POSSIDETIS JURIS
667
independent Namibia.” 218 The effect of these resolutions was to weaken South
Africa’s moral, but not legal claim, according to Ian Brownlie, who in 1979 saw
South African sovereignty as a straightforward proposition. 219
When a newly democratizing South Africa agreed to end its presence in
Namibia, the question arose of whether this would include Walvis Bay. Namibia
strongly insisted on its sovereignty over Walvis Bay, and even included its
territorial claim in its Constitution. 220 South Africa strongly disagreed. In practice,
Namibia achieved independence in March 1990 without Walvis Bay. South Africa
retained control over the territory and the two countries agreed in 1991 to establish
a joint committee to discuss the future of the area. 221 Finally, in 1994 South Africa
agreed to transfer Walvis Bay and the nearby islands by treaty to Namibia.
Notably, the treaty contained parallel language reflecting the position of each side
about the legal status of the transfer of control: “Walvis Bay shall be
reincorporated/integrated in the Republic of Namibia . . . .”222
The Walvis Bay episode demonstrates both the primacy of uti possidetis
juris and its functional flexibility. Both South Africa and Namibia asserted title to
the territory based on uti possidetis juris with the primary arguments concerning
the location of the administrative boundaries and the time of independence. And
while both sides asserted these legal arguments for decades, they ultimately
resolved the dispute on pragmatic grounds while paying lip service to the
contradictory legal claims.
III. THE PALESTINE MANDATE
Having looked at other Mandates we now turn to the Palestine Mandate.
The Palestine Mandate was one of the three “Class A” Mandates created out of the
colonial and imperial possessions of the Ottoman Empire. 223 Palestine was
218.
Id.; see also U.N. SCOR, 33d Sess., 2082nd mtg. at 6, U.N. Doc. S/PV/2082
(July 27, 1978) (statement by representative of Federal Republic of Germany endorsing
views expressed by Vance).
219.
IAN BROWNLIE, AFRICAN BOUNDARIES: A LEGAL AND DIPLOMATIC
ENCYCLOPEDIA 1287 (1979).
220.
THE
NAMIBIAN
CONSTITUTION
(1990),
art.
1(4),
http://unpan1.un.org/intradoc/groups/public/documents/cafrad/unpan002607.pdf.
221.
See Agreement on the Joint Administration of Walvis Bay and the Off-Shore
Islands, Namib–S. Afr., 32 I.L.M. 1152, 1155 (1993).
222.
Treaty Between the Government of the Republic of South Africa and the
Government of the Republic of Nambia with respect to Walvis Bay and the Off-Shore
Islands, Namib.–S. Afr., art. 2, May 20, 1994, http://peacemaker.un.org/sites/peacemaker.un
.org/files/NA-ZA_940228_WalvisBayTreaty.pdf. Similarly, the implementing South
African legislation said that Walvis Bay was “part of” South Africa, which it “deems
desirable to transfer . . . to the Republic of Namibia.” See South Africa: Act to Provide for
the Transfer to Namibia of the Territory of and Sovereignty over Walvis Bay and Certain
Islands, 33 INT’L LEGAL MATERIALS. 1573, 1574 (1994) (emphasis added).
223.
UPTHEGROVE, supra note 68, at 17.
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awarded to Britain with the charge of reconstituting a national home for the Jewish
people.224
Both the boundaries and the status of the Palestine Mandate developed
over several years. Britain seized control of the land that would eventually become
Palestine during the latter half of World War I, consolidating its control by 1918,
before the idea of creating Mandates had crystallized. 225 In April 1920, with a
British military administration already in place, the allied powers (Britain, France,
and Italy, together with representatives of Japan, Greece, and Belgium) met in San
Remo, Italy and decided to divide Ottoman imperial territories between Britain and
France, with Britain receiving the Mandates of Palestine and Mesopotamia, and
France being awarded Syria and the Lebanon. 226 At the time, negotiations with
Turkey (successor to the vanquished Ottoman Empire) had not yet been concluded.
Nonetheless, while the territories of Palestine, Mesopotamia, and Syria were still
technically within Turkey’s sovereign territory, Britain and France instituted
Mandatory rule. By July 1, 1920, Britain had appointed the first High
Commissioner of the Palestine Mandate. 227 But the formalities of the Mandate’s
legal personality and territory would not be fully sorted out until 1923.
In Sèvres, Switzerland, in August 1920, Turkey signed a treaty of peace
with the 13 allied powers, including Britain, in which Turkey surrendered
sovereignty over Palestine, Mesopotamia, and Syria, and agreed to the
establishment of a Mandate in Palestine charged with establishing a national home
for the Jewish people. The Treaty of Sèvres did not delineate the boundaries of
Palestine, and it did not propose a charter for the Palestine Mandate, leaving this to
be determined by the principal allied powers and approved by the League of
Nations.228 Unfortunately, the Treaty of Sèvres was never ratified by Turkey. In
the midst of civil war and war with its neighbors (Greece, Armenia, and French
Syria), the ruling parties in Turkey changed, and the new government repudiated
the Treaty of Sèvres. 229 War in Asia Minor continued for several years before
negotiations upon a replacement treaty were concluded.
A. Boundaries
Notwithstanding this hiccup, Britain and France set about establishing the
borders of the new Mandates. As a preliminary matter, it is useful to see the map
of the Mandate of Palestine, shown in Figure 1.230
224.
See British Mandate for Palestine, 17 AM. J. INT’L L. 164, 164, 170 (Supp.
1923) [hereinafter Palestine Mandate].
225.
ISAIAH FRIEDMAN, THE QUESTION OF PALESTINE: BRITISH-JEWISH-ARAB
RELATIONS, 1914–18, at 129 (2d ed. 1973).
226.
See FROMKIN, supra note 90, at 10–11.
227.
Id.
228.
Treaty of Sèvres, supra note 84.
229.
See generally KIESER, supra note 85.
230.
Note:
Figure
is
copied
from
https://upload.wikimedia.org/wikipedia/commons/6/69/BritishMandatePalestine1920.png,
which indicates it is in the public domain.
2016]
UTI POSSIDETIS JURIS
669
Figure 1
As the map illustrates, the territory of the Mandate of Palestine, as
initially established and approved by the League of Nations, includes all of modern
day Jordan, Israel, and areas under Palestinian control, including the areas subject
to conflicting Israeli and Palestinian claims. The figure, however, is misleading,
because while the general contours of the Mandate were known, the precise
boundaries had not been drawn.
One of the first tasks of the Mandatory, therefore, was to draw up the
boundary between Palestine and Syria-Lebanon, as well as the boundaries between
Palestine and Mesopotamia (Iraq) and between Palestine and Arabia. By the end of
1920, the two countries reached agreement on the first of the so-called PauletNewcombe Agreements—the Anglo-French Convention of December 23, 1920—
fixing the borders of Syria with Mesopotamia and with Palestine. 231 This set the
northern border of Palestine, although the border was modified subsequently by
the Anglo-French Agreement of March 7, 1923.232 The eastern border of Palestine
with Mesopotamia/Iraq was an internal British matter (since both Mandates were
British), and the border remained a matter of controversy for some time. 233 The
eastern border of Palestine with the Hedjaz and ultimately with Saudi Arabia
231.
Agreement between His Majesty’s Government and the French Government
Respecting the Boundary Line between Syria and Palestine from the Mediterranean to El
Hamme,
Gr.
Brit.–Fr.,
No.
1,
Mar.
7,
1923,
http://treaties.fco.gov.uk/docs/fullnames/pdf/1923/TS0013%20(1923)%20CMD-1910AGREEMENT%20BETWEEN%20GOV%20&%20FRENCH%20GOV%20RESPECTIN
G%20BOUNDARY%20LINE%20BETWEEN%20SYRIA%20&%20PALESTINE%20FR
OM%20MEDITERRANEAN%20TO%20EL%20HAMME.pdf.
232.
Franco-British Convention on Certain Points Connected with the Mandates
for Syria and the Lebanon, Palestine and Mesopotamia, 122 AM. J. INT’L L. (No. 3 Supp.
1922), https://archive.org/stream/jstor-2213236/2213236_djvu.txt.
233.
See generally FROMKIN, supra note 90.
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likewise remained in flux for several years, eventually being settled by a series of
agreements during the 1920s.234
Palestine’s western border, on the other hand, was a straightforward
matter—in the northwest, the Mediterranean Sea served as a natural boundary, and
in the southwest, Palestine inherited the border of the Ottoman Empire with Egypt,
which had been a de facto protectorate of Britain.235 Because Palestine was a new
entity, the southwestern border was the only one to have been previously
demarcated. While it was still formally part of the Ottoman Empire during the
nineteenth century, Egypt achieved de facto independence in the 1830s as a result
of the rebellion of Muhammed Ali. 236 The Ottoman Empire thus began mapping
the border between Egypt and the remainder of the Ottoman Empire as early as
1841.237 After Britain acquired control of Egypt, it pressed for rectification of the
border, and increasing tension led to a British demand in 1906 that the Ottomans
accept a Rafah-Dead Sea border, as surveyed by the British. 238 The two sides
signed a formal boundary agreement on October 1, 1906. 239 This boundary
continued to serve as the basis of the subsequent Palestine-Egypt border.
While negotiations with Turkey dragged on, Britain brought its Palestine
Mandate to the League of Nations for approval, and on July 24, 1922, the Council
of the League of Nations formally approved the Mandate. 240 As approved by the
Council, the Mandate recognized the grounds for the Jewish people reconstituting
their “national home” in Palestine, and charged Britain with establishing the
same.241 However, the Mandate included an important exception. Article 25 of the
Mandate permitted Britain to “postpone or withhold” the provisions of the
Mandate recognizing Jewish rights “[i]n the territories lying between the Jordan
and the eastern boundary of Palestine as ultimately determined,” subject to the
approval of the Council of the League of Nations.242
The explanation for this curious proviso lay in tension between Britain
and its Hashemite Arab allies. The Hashemites understood the British to have
promised them control over an Arab state comprising the Hedjaz, Mesopotamia,
and Syria (excluding Lebanon). However, the British had also agreed to French
control of the Syria Mandate, and the French had made clear that they were not
going to honor Hashemite claims in Syria. 243 When the French made good on their
234.
235.
See generally id.
See OFF. GEOGRAPHER, U.S. DEP’T OF STATE, INT’L BOUNDARY STUDY NO.
46 ISRAEL—EGYPT (UNITED ARAB REPUBLIC) BOUNDARY 2 (1965) [hereinafter
INTERNATIONAL BOUNDARY STUDY NO. 46].
236.
See generally ARTHUR GOLDSCHIDT JR., HISTORICAL DICTIONARY OF EGYPT
(4th ed. 2013).
237.
See generally id.
238.
See generally NURIT KLIOT, THE EVOLUTION OF THE EGYPT-ISRAEL
BOUNDARY: FROM COLONIAL FOUNDATIONS TO PEACEFUL BORDERS 1–2 (1995).
239.
See INTERNATIONAL BOUNDARY STUDY NO. 46, supra note 235, at 2.
240.
Palestine Mandate, supra note 224, at 171.
241.
Id. at 164.
242.
Id. at art. 25.
243.
See FROMKIN, supra note 90, at 438.
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UTI POSSIDETIS JURIS
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threats and deposed the Hashemite ruler in Damascus (the Emir Feisal), the
Hashemites dispatched a small armed force northward under the command of
Abdullah (the Emir Feisal’s brother). However, Abdullah’s forces—numbering
only 300—had no chance of driving the French out of Syria, and they stopped their
northward march midway through eastern Palestine, in the city of Ma’an without
ever confronting French forces. Abdullah’s forces remained in place for some
time, as all considered their next steps.244 Ultimately, the British decided to award
the eastern three-quarters of Palestine—better known as Transjordan or
Transjordania—to Abdullah. On April 1, 1921, Britain appointed Abdullah the
Emir of Transjordan.245 Thereafter, Britain functionally treated Transjordan as an
entirely separate governing area, distinct from Palestine. Article 25 provided the
legal hook for Britain to ratify this arrangement; Transjordan was the area
described in Article 25 of the Mandate. Thus, under Article 25, Britain could treat
Transjordan as exempted from the duty to reconstitute a Jewish national home in
Palestine.
Accordingly, in September 1922, Britain formally notified the Council
that it was exercising its Article 25 authority to withhold application of nearly all
the provisions of the Palestine Mandate in Transjordan. 246 This ratified the
functional division of the Mandate into two distinct administrations—Transjordan
and western (or Cisjordanian) Palestine, the latter generally referred to simply as
“Palestine.” In Transjordan, the British Mandatory administration cooperated with
Abdullah; in Palestine, the British cooperated with the Jewish Agency, as required
by the Mandate.
Functionally, Article 25 of the 1922 Mandate, together with the
subsequent September 1922 memorandum, cut Transjordan away from the
Palestine Mandate.247 The functional eastern boundary of (western) Palestine, for
the remainder of the Mandatory period, was the administrative border with
Transjordan—the Jordan River, and a line extending south from the Dead Sea (into
which the Jordan River empties) to the Red Sea, near Aqaba.
Interestingly enough, while the Mandate did not define boundaries, it did
establish in Article 5 that Britain “shall be responsible for seeing that no Palestine
territory shall be ceded or leased to, or in any way placed under the control of the
Government of any foreign Power.”248
And, indeed, once the British and French concluded their demarcation of
the northern border of Palestine in 1923, the external boundaries of (western)
Palestine remained stable for the remainder of the Mandatory period.
In 1923, the Turks finally concluded their negotiations for a peace treaty
to replace the Sèvres agreement. The 1923 Treaty of Lausanne left in place the
244.
MARY CHRISTINA WILSON, KING ABDULLAH, BRITAIN
JORDAN 44 (1990).
245.
Id. at 73.
246.
Palestine Mandate, supra note 224, at 171.
247.
See infra Section III.B.
248.
Palestine Mandate, supra note 224, at art. 5.
AND THE
MAKING
OF
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existing Mandatory arrangements and did not contain any special provisions
concerning Palestine. The treaty sufficed with a general Turkish renunciation of
sovereignty to all its possessions beyond Turkey’s borders, acknowledging “the
future of these territories and islands [outside Turkish sovereignty had been]
settled or [should] be settled by the parties concerned.”249
B. Transjordan
As noted, the Mandate for Palestine given by the League to Britain
encompassed within its territory the area now known as the Hashemite Kingdom
of Jordan. However, Britain divided the Mandate, turning more than 70% of the
territory into a separate administrative unit that would become the Emirate and
then the state of Transjordan. The functional division is shown in Figure 2.250
Figure 2
The Palestine Mandate was not the only Mandate partitioned by the
Mandatory. 251 Nonetheless, because our concern is the Palestine Mandate, it is
worth paying particular note to the partition authorized by the terms of the
Mandate, and then by the League of Nations.
The idea to partition the Mandate was born early in the British
administration of Palestine. In 1920, Herbert Samuel, first High Commissioner of
the Palestine Mandate, gave a speech in Transjordanian Palestine in which he
promised that Transjordan would not be governed under the administration of
249.
Treaty of Lausanne, supra note 86, at art. 16.
250.
Note: Figure is copied from https://upload.wikimedia.org/wikipedia/common
s/3/3d/PalestineAndTransjordan.png, which indicates it may be reused under a GNU Free
Documentation License.
251.
See supra Part II.
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UTI POSSIDETIS JURIS
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Palestine.252 The arrival in Transjordanian Palestine of Abdullah al-Hussein, a son
of the Emir of Mecca in 1921, and the head of a small army, strengthened this
conviction. In April 1921, Britain named Abdullah Emir of Transjordan, granting
him governing authority in the three Transjordanian districts of Palestine, subject
to British supervision. 253 By 1922, the British were committed to partition, and
they ensured that Article 25 of the Mandate, adopted in July 1922, allowed Britain
“to postpone or withhold application of such provisions of this mandate as he may
consider inapplicable to the existing local conditions, and to make such provision
for the administration of the territories as he may consider suitable to those
conditions.”254 Britain availed itself of this prerogative, and in September, 1922, it
dispatched a memorandum to the Secretary General of the League, 255 notifying
him that the Mandate would not be applying several of the provisions of the
Mandate to Transjordan—the listed provisions included all the parts of the
Mandate that established Jewish rights (such as the right to reconstitute a national
home, 256 to immigrate and acquire citizenship, 257 to “close settlement on the
land,”258 to participate in the administration of the Mandate, 259 etc.). The Palestine
Order in Council, adopted in August of 1922, likewise provided for separate
administration of Transjordan.260
The British went further in 1928, entering into a formal agreement with
Emir Abdullah that referred to Transjordan as an “independent state.” 261
Nonetheless, while Transjordan enjoyed complete local autonomy and minimal
actual British oversight, Transjordan remained formally part of the Mandate of
Palestine. 262 Britain never requested, nor did it ever receive authority from the
League to formally partition the Mandate. 263 Britain continued to report to the
Council of the League of Nations on its administration of Transjordan as part of its
Palestine Mandate annual report until 1943.264
252.
WILSON, supra note 244, at 46–47.
253.
Id. at 47.
254.
Palestine Mandate, supra note 224, at art. 25.
255.
Palestine Mandate: Memorandum by the British Representative, League of
Nations Doc. C.529.M.314.1922. VI 7 (1922).
256.
Palestine Mandate, supra note 224, at preamble and art, 2.
257.
Id. at art. 6–7.
258.
Id. at art. 6.
259.
Id. at art. 4.
260.
See The Palestine Order in Council, part VIII, art. ii, § 86, (Aug. 10, 1992),
https://unispal.un.org/DPA/DPR/unispal.nsf/0/C7AAE196F41AA055052565F50054E656;
see also Benjamin Azkin, The Palestine Mandate in Practice, 25 IOWA L. REV. 32, 39
(1939).
261.
Agreement between His Majesty and the Amir of Trans-Jordan, Gr. Brit.–
Jordan, p. 2, Feb. 20, 1928, T.S. No. 7 (1930).
262.
See Leonard Stein, The Jews in Palestine, 4 FOREIGN AFF. 415, 415–16
(1926) (“The Mandate remains in force in Trans-Jordan.”).
263.
See Official Journal of the League of Nations 1452-53 (1928); see also
Azkin, supra note 260, at 40.
264.
For example, Britain continued to treat Trans-Jordan as part of Palestine for
purposes of foreign relations. See MUTAZ M. QAFISHEH, THE INTERNATIONAL LAW
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While the British were clearly intent on establishing Transjordan as a
separate, Hashemite-ruled state, the Mandate did not authorize the removal of any
territory from the Mandate of Palestine; it only allowed for the nonapplication of
certain provisions. Thus, while it allowed for the separate administration of eastern
Palestine, it did not allow for partition; rather, Article 5 stated that “no Palestine
territory shall be ceded or leased to, or in any way placed under the control of, the
government of any Foreign Power.” 265 The French Mandate for Syria and the
Lebanon contained an identical Article 5, but also had clear language providing for
the establishment of two distinct states in the Mandated area, making clear that
Syria and the Lebanon were viewed as two Mandates.266 Moreover, Article 5 was
not included among the provisions of the Palestine Mandate suspended by Britain
pursuant to Article 25.267 Zionist groups pushed this argument quite strongly in the
1930s and 1940s, and insisted on independence for the complete Palestine,
including Transjordan. And the British seemed to be aware of the force of this
argument, formally insisting throughout the period that the territories were under a
single Mandate.268
Having withheld the applicability of certain provisions of the Mandate in
1922 and granting Jordan autonomy in 1928, Britain went the rest of the way in
1946, recognizing the independence of the Hashemite Kingdom of Jordan, and the
termination of the Palestine Mandate there, in 1946. At this point, arguments about
the violation of the Mandate could no longer be glossed over. 269 For the last two
years of the Palestine Mandate (until May 1948), it did not include Transjordan.
FOUNDATIONS OF PALESTINIAN NATIONALITY: A LEGAL EXAMINATION OF PALESTINIAN
NATIONALITY UNDER THE BRITISH RULE 47 n.235 (2008).
265.
See Azkin, supra note 260, at 40.
266.
See Gidon Gottlieb, From Autonomy to a Framework State, in
CONTEMPORARY ISSUES IN INTERNATIONAL LAW: ESSAYS IN HONOR OF LOUIS B. SOHN 493,
496 (Thomas Buergentahl ed., 1984) (distinguishing Lebanon and Syria, which were always
two Mandates for two territories, from Transjordan under the Palestine Mandate); French
Mandate for Syria and the Lebanon, 17 AM. J. INT’L LAW (SUPP.) 177, 177 (1923) (“The
Mandatory shall further enact measures to facilitate the progressive development of Syria
and the Lebanon as independent states.”) (emphasis added).
267.
One might wonder whether establishing a state in eastern Palestine under the
Emir would constitute putting it under a foreign power, a point which is not obvious. The
Emir was not foreign to Transjordan, but the Jordanian government could be said to be
foreign to Palestine. On this point, it is worth considering the judgment of the Supreme
Court of Palestine in a 1945 case about visa requirements for Jordanians. The Court
addressed whether Transjordan was a separate territory within Palestine, or a separate state,
and concluded “Trans-Jordan must be regarded as a foreign state in relation to Palestine.”
See generally Jawdat Badawi Sha’ban v. Commissioner for Migration and Statistics, 12 L.
REP. PALESTINE 551 (1945). The Supreme Court was an institution staffed by British judges,
who sometimes, as in this case, sat alongside local ones. See ASSAF LAHOVSKI, LAW AND
IDENTITY IN MANDATORY PALESTINE 51–52, 75–76 (2006).
268.
See Gottlieb, supra note 266, at 496 (“There never were two mandates, one
west of the Jordan and the other east of the River.”).
269.
Britain addressed these objections, which were raised in the United Nations,
by arguing that the international community had acquiesced in “setting up Transjordan as an
independent state.” See CRAWFORD, supra note 151, at 579.
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UTI POSSIDETIS JURIS
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Upon the independence of Transjordan, the administrative boundary between it
and Palestine became the new international boundary, consistent with the doctrine
of uti possidetis juris. This is despite very strong legal arguments against the
severance of the territory from Palestine. Thus, while Jewish nationalist parties
continued to claim Transjordan throughout the 1940s and 1950s, 270 and
Transjordan (and later Jordan) claimed legal rights to territory in Palestine that it
captured during its 1948 invasion, neither set of claims received any serious
recognition. Indeed, the Jewish authorities of Palestine recognized Transjordan’s
borders despite any scruple they may have had about its formation.
C. Other Administrative Lines
After the separation of Transjordan, what remained of Palestine
functioned under a single Mandatory administration until the termination of British
rule in 1948. Throughout the Mandatory period Palestine was divided into several
districts for various purposes.
The earliest set of divisions was that left over by the Ottoman Empire.
Since the Ottoman Empire did not recognize any entity by the name of Palestine,
most of what became the Mandatory territory was organized within Syrian districts
(vilayets), with Jerusalem receiving separate status as a Mutasarrifate. 271 These
divisions were reflected in the earliest British military administration, but the
British authorities soon developed their own district administration. The military
administration eventually divided western Palestine into thirteen administrative
districts, which it then recombined in 1919 into ten districts. With the onset of the
Mandatory period came a rapid and bewildering series of changes in district
administration. The year 1920 began with nine districts, soon changed to thirteen,
and then seven. By October 1922, Palestine was divided into four districts, further
divided into eighteen subdistricts. Thereafter, for most of the 1920s and 1930s,
Palestine was divided into three districts and eighteen subdistricts, though the
borderlines changed. The years 1937, 1938, and 1939 saw three more reshufflings,
resulting, ultimately, in six districts and eighteen subdistricts. A final reshuffling
came in 1945, when the British authorities redivided Palestine into six districts and
sixteen subdistricts.272
In all of the reshuffling, the role of district government remained limited.
Districts were used for certain kinds of municipal governance, including municipal
taxation, as well as for census data.273 While they sometimes reflected municipal
or other lines that could render them useful for purposes of partition, they did not
constitute lines that separated any fundamental differences in administration.
Unsurprisingly, in the many proposals for a second partition of the Palestine
270.
See NADAV GERSHON SHELEF, EVOLVING NATIONALISM: HOMELAND,
IDENTITY, AND RELIGION IN ISRAEL, 1925–2005, at 83–93 (2010).
271.
GIDEON BIGER, THE BOUNDARIES OF MODERN PALESTINE, 1840–1947 15, 184
(2004).
272.
Id. at 216.
273.
Id.
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Mandate (following the partition between western and Transjordanian Palestine),
the district government boundaries played, at best, a minor role.
D. Proposals for Altering Palestine’s Boundaries
The Palestine Mandate was controversial from its very onset. Other
Mandates honored, in their own fashion, the rights of self-determination of local
populations. The Palestine Mandate, by contrast, elevated the rights of selfdetermination of a local minority population that was expected to be joined by
substantial immigration. Unsurprisingly, this led to clashes between the minority
Jewish and the majority Arab populations. With some notable exceptions, Arab
efforts were aimed from the start at foiling the emergence of a Jewish polity of any
kind—both by blocking immigration of Jews and, more generally, by denying
expressions of Jewish self-determination.274 Over time, and after repeated bouts of
anti-Jewish violence, some Jewish leaders came to embrace the concept of
dividing the Palestine Mandate in order to assuage the conflict, or at least to pass
through an interim period when Jewish immigration was insufficient to create a
Jewish majority in all of Palestine. 275
The earliest formal second partition proposal originated in the late 1930s,
in the wake of what was known as the “Arab Revolt.” In 1936, the British
appointed a royal commission of inquiry, headed by Lord Peel to investigate the
causes of violence and suggest solutions. Jewish Agency chairman David BenGurion proposed a division of Palestine utilizing subdistrict lines,276 but the Peel
Commission ultimately adopted a different proposal, which encompassed both
western Palestine and Transjordan, dividing them along entirely new lines between
proposed Jewish and Arab states. 277 The Peel Commission report was initially
accepted by the British government, but controversy followed and the report was
shelved.278
In 1938, a new commission—the Woodhead Commission—was
appointed to propose a different partition of Palestine. The Commission heard and
rejected a new Jewish Agency proposal for partition, 279 and the Commission
Report itself offered two new partition proposals, 280 but none won over a majority
of the Commission. 281 Thereafter, the British abandoned the idea of partition.
Instead the British favored the geographic unity of (western) Palestine, together
with strict limitations on Jewish immigration and legal restrictions on Jewish
274.
SAMI ADWAN ET AL., SIDE BY SIDE: PARALLEL HISTORIES OF ISRAELPALESTINE 27–109 (2012).
275.
U.N. DEP’T OF PUB. INFO., THE QUESTION OF PALESTINE AND THE UNITED
NATIONS, at 9, U.N. Doc. DPI/2499 (2008), https://unispal.un.org/pdfs/DPI2499.pdf.
276.
See BIGER, supra note 271, at 198.
277.
Id. at 193.
278.
Id.
279.
Id. at 206.
280.
See PALESTINE PARTITION COMMISSION, REPORT 1938 (UK),
https://archive.org/stream/WoodheadCommission/Woodhead-abbyy_djvu.txt.
281.
BIGER, supra note 271, at 206.
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UTI POSSIDETIS JURIS
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property rights in order to prevent the emergence of a Jewish state. 282 This was a
clear violation of the terms of the Mandate, but Britain implemented its new policy
anyway, beginning in 1939.
After World War II, once the dimensions of the Holocaust had become
clear, British opposition to a proposed Jewish state became an increasing source of
embarrassment, and partition returned to public deliberations. A new partition map
was offered by a British-American committee appointed to consider
implementation of a 1946 Anglo-American Commission of Inquiry report. The
map, which was known as the Morrison-Grady proposal, 283 won no official
approval.284
In 1947, the British turned to the newly created United Nations for
suggestions on the fate of the Palestine Mandate, and the UN General Assembly
appointed a Special Committee on Palestine (“UNSCOP”) with representatives
from 11 states. UNSCOP adopted a plan for partition that it recommended to the
General Assembly.285 The General Assembly then slightly modified the plan and,
in General Assembly resolution 181 of November 1947, recommended it to the
Security Council and to Britain. 286 As shown in Figure 3,287 the plan would have
divided (western) Palestine into a patchwork of eight pieces, with three pieces
going to a Jewish state, four to an Arab state (three large chunks and a small
enclave in Jaffa), and one to continued British trusteeship (greater Jerusalem). 288
The Security Council, however, took no action on the plan and Britain rejected
it. 289 A provisional UN authority for Palestine, which was to facilitate
implementation of the partition and governance of Jerusalem, was denied entry by
Britain, and was ultimately never dispatched.290
282.
SEC’Y OF STATE FOR THE COLONIES, BRITISH WHITE PAPER OF 1939, Yale L.
Sch.: The Avalon Project, Cmd. 6019 (UK), http://avalon.law.yale.edu/20th_century/brwh1
939.asp.
283.
ANGLO-AMERICAN COMM. OF INQUIRY, U.S. DEP’T OF STATE, REPORT TO THE
UNITED STATES GOVERNMENT AND HIS MAJESTY’S GOVERNMENT, THE UNITED KINGDOM
(1946), http://avalon.law.yale.edu/20th_century/angcov.asp.
284.
See BIGER, supra note 271, at 212.
285.
ITZHAK GALNOOR, PARTITION OF PALESTINE: THE DECISION CROSSROADS IN
THE ZIONIST MOVEMENT 285 (1995).
286.
See G.A. Res. 181 (II), Future Government of Palestine (Nov. 29, 1947),
https://unispal.un.org/DPA/DPR/unispal.nsf/5ba47a5c6cef541b802563e000493b8c/7f0af2b
d897689b785256c330061d253?OpenDocument.
287.
United Nations Partition Plan for Palestine, WIKIPEDIA.ORG,
https://en.wikipedia.org/wiki/United_Nations_Partition_Plan_for_Palestine (last visited July
25, 2016).
288.
General Assembly II, supra note 286; BIGER, supra note 271, at 15, 84.
289.
See BIGER, supra note 271, at 15, 84.
290.
See Stefan Brooks, British Mandate for Palestine, in THE ENCYCLOPEDIA OF
THE ARAB-ISRAELI CONFLICT: A POLITICAL, SOCIAL, AND MILITARY HISTORY 770 (Spencer
C. Tucker ed., 2008).
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Figure 3
Given the fact that this was the last partition proposal of any note before
the dissolution of the Mandate in 1948, as well as the endorsement of the General
Assembly, elements of the proposed 1947 partition continued to play a role in both
legal and political discussions about Palestine for decades thereafter. However, the
Mandatory government never adopted any of the divisions proposed within the
1947 resolution.291
While General Assembly Resolution 181 failed to effect any legal change
in Palestine, it had profound real-world effects. Arab irregulars launched attacks
on the day the plan was adopted by the General Assembly as part of a larger effort
to prevent the creation of a Jewish state, and soon all of Palestine was engulfed in
war.292 The Jewish leadership in Palestine had accepted the proposed partition, and
in the initial months of the war, fighting concentrated in the areas allotted to a
proposed Jewish state by Resolution 181, as well as Jerusalem, with Arab forces
attempting to isolate Jewish communities while Jewish forces attempted to keep
291.
There are writings that argue that Resolution 181 actually accomplished a
partition of Palestine. See, e.g., Anthony D’Amato, Israel’s Borders Under International
Law
(NW
U.
PUB.
L.
RES.
PAPER
No.06-34,
2007),
http://anthonydamato.law.northwestern.edu/Adobefiles/israels-borders-under-internationallaw.pdf. These works appear to be based upon a misapprehension of the facts. See id. For
instance, D’Amato’s work presents the resolution as a ratification of a British proposal for
partition that the British simultaneously accepted and implemented. See id.
292.
See MORRIS, supra note 14, at ch. 5.
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UTI POSSIDETIS JURIS
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lines of transport open among the communities.293 The British, who had agreed to
withdraw by November 29, 1948, accelerated their departure from Palestine,
ultimately exiting on May 15, 1948, while closing down all of the machinery of the
Mandate. 294 As the British exited on May 15, all the neighboring Arab states,
including Transjordan (which had received independence from Britain in 1946), as
well as some Arab states not neighboring Palestine, invaded in order to prevent the
emergence of a Jewish state. 295 On the eve of the British withdrawal, on May 14,
Jewish authorities declared the independence of the Jewish state in Palestine,
called Israel. 296 Local Arab authorities, on the other hand, while rejecting the
Jewish state, did not declare or otherwise move to create an Arab state in
Palestine. 297 Shortly thereafter, the Arab states that had conquered parts of
Palestine imposed a military administration on the areas they had seized. 298 In
September, fearing Transjordanian annexation of parts of Mandatory Palestine,
Egypt initiated the creation of an Arab government of “all Palestine,” which, on
October 1, declared an independent Arab state in all of Palestine. While six Arab
states recognized the new “government” of Palestine, it never exercised any
authority anywhere, and it quietly retired to anonymous offices in Cairo and then
dissolution.299
The war ended by late 1948, with Israel controlling roughly three-quarters
of the territory of the Palestine Mandate. The remaining territory was conquered
by Syria, Egypt, and Jordan (the new name of Transjordan). Egypt ruled the
conquered parts of Palestine (the Gaza Strip) by military administration, while
Transjordan and Syria treated the conquered areas as part of their municipal
territories. 300 No other Arab state claimed sovereignty within the area. Syria, 301
Egypt, 302 and Jordan303 all signed armistice agreements with Israel, marking the
lines between the territory controlled by Israel and the lands conquered by the
Arab states. However, the armistice agreements were clear in stating that the
armistice lines were not boundaries and that the parties retained their claims to
territorial sovereignty.
293.
Id.
294.
Id. at 178–79.
295.
Id. at ch. 5.
296.
DECLARATION OF ESTABLISHMENT OF STATE OF ISRAEL (May 14, 1948),
http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/declaration%20of%20establish
ment%20of%20state%20of%20israel.aspx.
297.
MORRIS, supra note 14, at 178.
298.
Id.
299.
Avi Shlaim, The Rise and Fall of the All-Palestine Government in Gaza, 20
J. PALESTINE STUD. 37, 37–53 (1990).
300.
MORRIS, supra note 14, at 178.
301.
See Armistice Agreement between Israel and Syria, Isr.–Syria, July 20, 1949,
UN Doc S/1353.
302.
General Armistice Agreement between Egypt and Israel, Egypt–Isr., Dec. 13,
1949, U.N. doc. S/1264/Rev. 1.
303.
See Armistice Agreement between the Hashemite Kingdom of Jordan and
Israel, Isr.–Jordan, Apr. 3, 1949, UN Doc S/1302.
680
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A fourth armistice agreement was signed with Israel’s last neighboring
state—Lebanon.304 Because Lebanon had not succeeded in conquering and holding
any of the territory of the Palestine Mandate, the armistice line with Lebanon
coincided with the prior boundary of the Mandate. Nonetheless, the armistice line
had an interesting feature. Like the armistice lines with Israel’s other neighbors,
the armistice line with Lebanon was established as a military line, without
prejudice to the parties’ claims to territorial sovereignty. 305 Nonetheless, the
armistice line was not delineated in relation to the actual military positions of the
parties or geographic features. Rather, the line was described as “follow[ing] the
international boundary between Lebanon and [the Mandate of] Palestine.”306 This
is particularly interesting since the Palestine Mandate-Lebanon border would not
have been maintained under the proposed partition in General Resolution 181. The
map of the armistice lines is shown in Figure 4.307
Figure 4
304.
See Lebanese-Israeli General Armistice Agreement, Isr.–Leb., March 23,
1949, U.N. Doc. S/1296/Rev. 1.
305.
Id. at art. II–III, V.
306.
Id. at art. V.
307.
U.N.
Armistice
Lines
1949,
WIKIPEDIA,
https://upload.wikimedia.org/wikipedia/commons/0/0b/UN_armistice_lines_1949.jpg (last
visited July 26, 2016).
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UTI POSSIDETIS JURIS
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Similarly, none of the armistice agreements attempted to utilize the
proposed partition lines of Resolution 181 in any fashion. Interestingly, while
neither Israel nor any of its neighboring states treated the partition lines as the
borders of Israel, and while there were never any moves to create a Palestinian
Arab state along the proposed partition lines, there were states outside the region
that attempted to hold on to a single feature of the proposed partition that they
found genial—the temporary internationalization of Jerusalem. After the war, the
General Assembly passed several resolutions calling for Jerusalem to be
internationalized. 308 Many states refused to recognize Jordanian and Israeli
sovereignty over the parts of the city that each controlled, 309 and Israel’s
establishment of Jerusalem as its capital in 1949 310 was widely dismissed. 311
However, international pique about Jerusalem never translated into any change in
administration on the ground, or legal acceptance by Jordan or Israel.
The armistice lines, as established in 1949 and modified by minor
adjustments in military lines between 1949 and 1967, are often referred to as the
“1967 boundaries.”312 As we have seen and will now discuss, the implication that
the 1949 armistice lines became Israel’s legal borders is difficult to square with the
doctrine of uti possidetis juris.
IV. APPLYING UTI POSSIDETIS JURIS TO THE BORDERS OF ISRAEL
On May 14, 1948, when Israel declared its statehood, its forces controlled
only a small part of Palestine. While Israel’s geographic scope of authority
expanded by the end of the war, the armistice agreements that ended the war in
1949 left large parts of Palestine in the hands of Syria, Egypt, and Jordan.
The doctrine of uti possidetis juris, however, rejects possession as
grounds for establishing title, favoring instead legal entitlement based upon prior
administrative borders. And it is clear that the relevant administrative borders of
Palestine at the time of Israel’s independence were the boundaries of the Mandate
as they had been set in 1923. Israel was the only state that emerged from
Mandatory Palestine, and it was a state whose identity matched the contemplated
Jewish homeland required of the Mandate and that fulfilled a legal Jewish claim to
self-determination in the Mandatory territories. There was therefore no rival state
308.
See, e.g., G.A. Res. 303 (IV), Palestine: Question of an International Regime
for Jerusalem and the Holy Places (Dec. 9, 1949); G.A. Res. 356 (IV), Budget
Appropriations for the Financial Year 1950 (Dec. 10, 1949).
309.
See, e.g., C.K. Johnson, U.S. Policy on Jerusalem: Memorandum
Discouraging Nations from Recognizing Jerusalem as the Capital of Israel (May 31, 1962),
http://www.jewishvirtuallibrary.org/jsource/US-Israel/FRUS5_31_62a.html.
310.
See Ben-Gurion, Isr. Prime Minister, Statement to the Knesset by Prime
Minister
Ben-Gurion,
¶
5
(Dec.
13,
1949),
http://www.mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/7%20statement%
20to%20the%20knesset%20by%20prime%20minister%20ben-g.aspx.
311.
See G.A. Res. 303 (IV), supra note 308.
312.
See, e.g., Ethan Bronner, Netanyahu Responds Icily to Obama Remarks,
N.Y. TIMES, May 19, 2011, at A9; Tim Lister, Maps, Land and History: Why 1967 Still
Matters, CNN, May 24, 2011, at IV.
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that could lay claim to using internal Palestinian district lines as the basis of
borders. At the same time, while considerable efforts had been invested in creating
and advancing proposals for altering the borders of the ultimate Jewish state and a
contemplated companion Arab state, no such efforts were crowned with the
success of implementation. Thus, it would appear that uti possidetis juris dictates
recognition of the borders of Israel as coinciding with the borders of the Mandate
as of 1948.
Having seen the workings of the doctrine of uti possidetis juris and the
prima facie case for applying the doctrine to establish the borders of Israel along
the boundaries of the Palestine Mandate, a final question remains: are there any
unusual features about Israel’s independence that would undermine the conclusion
that Israel’s borders at independence were the borders of the Palestine Mandate?
This Article considers, first, unusual features of Israel’s independence
that might undermine the application of uti possidetis juris. This Article then
considers if the subsequent actions of the affected parties shed any evidence
contrary to the understanding that uti possidetis juris would apply. Finally, we
briefly consider the implications of establishing the borders on the basis of uti
possidetis juris and potential alterations of the borders in the years since 1948.
Overall, the record shows no reason for rejecting the application of uti
possidetis juris. It shows that Israel, in various ways, offered to accept the smaller
partition borders before independence and that it renewed these offers after
independence, as well. However, for purposes of determining the original borders
of Israel, the doctrine of uti possidetis juris inquires only into the borders as they
stood at the time of independence. In making this determination, Israel’s
subsequent acts are relevant only as they bear on the question of what the preIsrael borders were understood to be. There is no unequivocal evidence that Israel
understood the borders of Palestine to have changed prior to Israel’s independence.
The evidence of actions post-independence that might have changed the
borders is more equivocal. For the most part, there is insufficient evidence to show
any consensual transfer of territorial sovereignty or acquiescence in the creation of
new de jure borders. The potential exception to this general rule is the Israeli
withdrawal from the Gaza Strip in 2005, 313 which might be seen as an
abandonment. Additionally, the growing maturity of Palestinian-Arab claims of
self-determination, and several Israel-Palestine Liberation Organization
agreements that provided for Palestinian-Arab autonomy,314 will no doubt prove
relevant in the creation of a future boundary when, if ever, an Arab-Palestinian
state315 achieves independence.
313.
See DAVID MAKOVSKY, ENGAGEMENT THROUGH DISENGAGEMENT 22–31
(2005).
314.
See generally BARRY RUBIN, THE TRANSFORMATION OF PALESTINIAN
POLITICS: FROM REVOLUTION TO STATE-BUILDING (rev. ed. 2001).
315.
“Palestine” has since Roman times been a geographic name without an
ethnic connotation. Thus under the Mandate for Palestine, “Palestinians” included Jews,
Arabs, and all other residents of the territory. Since at least the 1960s, the term “Palestinian”
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A. Israel’s Independence
The independence of Israel took place in the middle of an armed conflict
and political controversy. Together, the events surrounding Israel’s independence
raise several interesting issues for discussion.
1. Termination
First is the matter of the termination of the Mandate of Palestine. The
Mandate did not follow an orderly pattern of termination in which the Mandatory
determined to bestow independence upon the Mandate, won approval for its action
from the League of Nations, and then terminated the Mandate by agreement.
Britain simply abandoned the Mandate on May 15, 1948. The League of Nations
no longer existed at the time, and the United Nations, which played a substitutive
role of disputed legality, 316 never voted to accept the abandonment as a
termination. The General Assembly did vote to recommend a particular means of
terminating the Mandate, but it left implementation of its recommendation to
Britain and the Security Council, neither of which chose to follow the
recommendation.
Despite all these anomalies, it is difficult to dispute that the Mandate was
terminated on May 15, 1948. Disorderly terminations were the norm for the “Class
A” Mandates. All of the other “Class A” Mandates were terminated without prior
approval of the League of Nations, and in some cases they were terminated
without any orderly process at all. The Mandate of Syria and the Lebanon, for
instance, “disappeared ‘with graceless reluctance.’” In 1941, during World War II,
the “Free French” (the opposition French exiles who attempted to exert authority
over French interests after the Nazi takeover of France) declared Syrian and
Lebanese independence, but the declaration was not universally accepted, even by
allies such as the United States. The League, which was no longer functioning,
neither approved nor disapproved. France later attempted to reassert its authority in
Lebanon without success, and it continued to maintain that the Mandate was in
force. Nonetheless, when the League reassembled following the war for its final
session, it “welcomed the termination of the mandated status of Syria [and] the
Lebanon.”317
Even Transjordan, granted independence by Britain in 1946, failed to
make a smooth exit from the Mandate system. Britain did not request permission
from the League of Nations or from the General Assembly (after the League
ceased to function) to terminate Mandatory rule in Transjordan. As a result, Poland
challenged Transjordanian independence in 1946 when Transjordan applied for
UN membership; Jordan was not finally accepted until 1955.318
has overwhelmingly been used to refer to the area’s Arab population, and a “Palestinian
state” to mean an exclusively or overwhelmingly ethnic Arab state within the territory of the
former Mandate.
316.
CRAWFORD, supra note 151, at 576–77.
317.
Id. at 577.
318.
Id. at 578–79.
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The failure of the League of Nations formally to terminate the Mandate of
Palestine is thus neither surprising nor legally significant. It is not necessary to
interpret General Assembly Resolution 181 as an implied termination in order to
reach the conclusion that the Palestine Mandate was terminated in 1948.319
2. Self Determination
Another set of problems related to the Palestine Mandate concerns
questions of self-determination. From the outset, the Palestine Mandate was
anomalous in that it recognized a particular people as entitled to express their selfdetermination on the territory of the Mandate, even though that people was not at
that time the majority population of the Mandate. Over the years, Palestinian
advocates have argued that this portion of the Mandate was ultra vires, and that the
Jewish people were not entitled to receive a grant of the legal right to selfdetermination. 320 The argument has little to recommend it. 321 But even if the
argument were well founded, it would have little effect on the outcome of the uti
possidetis juris analysis, as we have seen. Even unlawful treatments of the right of
self-determination have not been seen as grounds to undermine the uti possidetis
juris borders of other Mandates.
A potentially more serious matter is the question of whether the Jewish
people were the only nation entitled to self-determination in the Mandate of
Palestine. The Mandate itself gives no indication of there being another entitled
nation, describing only a Jewish national home and no other national home or
national expression. The Mandate provides for a single partition (the separation of
Transjordan from the remainder of the Mandate), but no other. The Mandate of
Palestine was not, of course, the only Mandate to encompass populations who
would not be granted the right to self-determination and an independent state
(consider, for instance, the Kurds in the Mesopotamian Mandate). However, the
Mandate of Palestine was the only one in which the majority population (the Arabs
of Palestine) was impliedly denied a right of self-determination by the founding
documents. It may be argued that, notwithstanding the silence of the founding
documents of the Mandate, the Palestinian Arabs did have a claim to selfdetermination. General Assembly Resolution 181 of 1947 would have given both
the Palestinian Jewish and Palestinian Arab peoples independent states.
The rights of multiple nations to self-determination on a given territory
should not, prima facie, disturb application of the doctrine of uti possidetis juris.
319.
Cf. id. at 430. (James Crawford oddly argues that the Resolution must be
read as having the legal effect of termination because a “[m]andatory could not by its own
unilateral act resile from its responsibilities.”). Unilateral acts of that sort—discussed by
Crawford elsewhere in his book—were exactly what terminated the Mandates of Syria and
the Lebanon, Transjordanian Palestine, and Mesopotamia (Iraq). See generally id.
320.
E.g., HENRY CATTAN, PALESTINE AND INTERNATIONAL LAW: LEGAL ASPECTS
OF THE ARAB-ISRAELI CONFLICT 45 (1973); see also QUIGLEY, supra note 27, at 66.
321.
See Nathan Feinberg, The Arab-Israel Conflict in International Law: A
Critical Analysis of the Colloquium of Arab Jurists in Algiers, in NATHAN FEINBERG,
STUDIES IN INTERNATIONAL LAW 433 (1979); CRAWFORD, supra note 151, at 178.
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This is not simply because the doctrine of uti possidetis juris does not rely upon
the existence of a prior claim of self-determination for the new state. Nor is it
simply because uti possidetis juris may actually conflict with and override the
demands of self-determination, as the International Court of Justice stated
explicitly in the Burkina Faso case.322 The most important reason for rejecting the
idea that multiple claims of self-determination forbid application of uti possidetis
juris is that many of the states that have had their borders established by uti
possidetis juris have, in fact, been subject to multiple claims of self-determination;
in no case has the existence of an additional nation with a right of selfdetermination defeated application of the doctrine of uti possidetis juris. This is
true even when the new state that claimed the benefit of uti possidetis juris was
later itself driven apart by new internal claims of self-determination. Yugoslavia
and the U.S.S.R. provide several examples of this. Consider, for instance, Serbia
(later subject to the secession of Kosovo) and Ukraine (later subject to the highly
controversial secession of Crimea).
If an Arab-Palestinian state had achieved independence in 1948,
alongside the Jewish one, this would have doubtlessly affected the application of
uti possidetis juris. With two states having achieved independence at the same
time within the Mandate of Palestine, it would obviously not be possible for both
states to share the borders of the Mandate. Different lines would have to serve as
the basis of the borders of each state—if the new states could not reach agreement
on mutually acceptable boundaries, the borders of districts or subdistricts would
have to do. But, despite the potential self-determination claim of the Arab
population of Palestine, only one state was born in 1948 at the termination of the
prior administration. As the Palestine Mandate ended, the state of Israel achieved
independence. No other state did.
Likewise, if the partition of Palestine envisioned by General Assembly
Resolution 181 had been implemented, even if only administratively, the
application of uti possidetis juris would have changed. Resolution 181 called for a
U.N. Commission to take over administration of Palestine as the Mandatory
withdrew. The Commission was to “carry out measures for the establishment of
the frontiers of the Arab and Jewish States and the City of Jerusalem” and then to
assist in the creation of provisional governments before the states achieved
independence.323 However, the Commission never arrived in Palestine. Neither the
Commission nor the Mandatory ever sketched out the proposed frontiers. At no
time was a separate administration ever set up for the proposed Jewish, Arab, and
Jerusalem territories as called for by the resolution. 324 In short, at the time of
independence, there was only one administrative unit in Palestine. To attempt to
322.
Frontier Dispute (Burk. Faso/Mali), 1986 I.C.J. 554, 566 (Dec. 22).
323.
See G.A. Res. 181 (II), Future Government of Palestine, (Nov. 29, 1947),
https://unispal.un.org/DPA/DPR/unispal.nsf/5ba47a5c6cef541b802563e000493b8c/7f0af2b
d897689b785256c330061d253?OpenDocument.
324.
Indeed, the British were quite open in their “attempt[] to forestall the U.N.
Assembly’s resolution.” The British Mandate “advanced its withdrawal date from Palestine
to 15 May 1948 and did not cooperate with the U.N. Commission.” Asher Maoz, War and
Peace—An Israeli Perspective, 14 CONSTITUTIONAL FORUM, no. 2, at 36 (2005).
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apply uti possidetis juris to any borders other than those of the Mandate would
leave the remaining Mandatory territories terra nullius, which is exactly the
situation the doctrine seeks to avoid.325
3. Armed Conflict
Israel was born in conflict. The armed conflict surrounding the
independence of Israel began in November 1947, with Palestinian Arab attacks on
Palestinian Jews, and it continued through Israel’s declaration of independence and
the invasion of the Arab states in May 1948, until the ultimate end of hostilities in
March 1949.326 At no time during the course of the conflict did Israel ever control
all of the territory of the Mandate, and the armistice agreements ending the war did
not award Israel possession and forbade non-peaceful changes in the armistice
lines.
Armed conflict frequently accompanies the birth of new states, and the
workings of the doctrine of uti possidetis juris in such cases are perfectly clear.
The status quo post bellum and the vicissitudes of war do not change boundaries.
B. Israel’s Conduct Following Independence
Post-independence conduct can play a role in uti possidetis juris cases in
showing how the parties viewed the pre-independence administrative boundaries.
As we have already considered the boundaries of Palestine as they existed at the
time of independence, it remains for us to examine whether Israel’s conduct or that
of its neighbors after the time of independence might show that they believed that
new administrative boundaries had been set before the date of independence. As
we shall see, while the record is equivocal, the best view of the evidence points to
Israel’s sovereignty within the full boundaries of the Palestine Mandate in
accordance with the doctrine of uti possidetis juris.
In reaching this conclusion, it is important to note the importance of
actions within the relevant time frame. For purposes of uti possidetis juris, the
crucial period is that leading up to and including the time of independence. Postindependence conduct is relevant, but only insofar as it bears on evidence of the
borders at the “critical date” of independence. Post-independence conduct helps to
“obtain[] a clearer picture of the situation on the ground at the critical date.” That
is, for purposes of uti possidetis juris, post-independence conduct does not affect
the borders; at most it can provide evidence of what the administrative boundaries
were prior to independence.327 It is the formal acts of the erstwhile sovereign prior
325.
Cf. CRAWFORD, supra note 151, at ii. (considering the possibility that the
establishment of Israel gave Israel sovereignty over the territory it actually controlled and
left the remaining Mandatory territory terra nullius). Curiously, Crawford does not consider
the possibility that Israel acquired sovereignty over the entire Mandatory territory by
operation of uti possidetis juris. See id.
326.
See AMNON RUBINSTEIN & BARAK MEDINA, THE CONSTITUTIONAL LAW OF
THE STATE OF ISRAEL 269–71 (5th ed. 1996) (Hebrew).
327.
Giuseppe Nesi, Uti Possidetis Doctrine, in MAX PLANCK ENCYCLOPEDIA OF
INTERNATIONAL LAW (R. Wolfrum ed., 2011).
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UTI POSSIDETIS JURIS
687
to independence that have a “paramount role” in establishing borders, rather than
the subsequent acts of the new state.328
Of course, it is always possible to change borders. Once the original
borders have been established—which, according to the doctrine of uti possidetis
juris, depends on the situation at the critical date of independence—a separate
question arises as to whether they have been subsequently modified by cession or
other forms of transfer. In these questions, the formal acts of the new sovereign
acquire critical importance. The actions of the succeeding power go to cession or
modification; the actions of the former power determine initial borders.
The borders of Israel were a matter of great controversy at the time that
Israel declared its independence. At the time, the Arab leadership of Palestine
(and, likewise, the Arab leaderships of neighboring Arab states) rejected any
Jewish state, while the Jewish leadership was committed to a policy of partition. 329
Accordingly, while the Jewish leadership had many objections to the details of the
U.N. General Assembly-endorsed partition proposal, it saw the imprimatur of the
General Assembly as an important asset, and it therefore endorsed the partition
resolution and continued to endorse it, at least provisionally, during the early
months of the war. 330 At the same time, the Jewish leadership was open in its
doubts about the feasibility of the details of the partition proposal, as well as its
reluctance to accept the partition proposal unilaterally. 331 By the time of Israel’s
declaration of independence, it was clear that the partition proposal would never be
implemented, and a fierce debate broke out concerning the ultimate boundaries of
Israel.332 For this reason, Israel’s Declaration of Independence made no mention of
borders. The Declaration did cite General Assembly Resolution 181 but recalled it
as one of several sources of legitimacy of a Jewish state and nowhere endorsed the
particulars of its partition proposal.333
The first legislation adopted by Israel’s new Provisional Council of
State—the Law and Administration Ordinance of 5708-1948,334 published on May
19, 1948—contained several indications of Israel’s presumed adoption of the
geographic scope of the Mandate. Article 11 of the Ordinance adopted the laws of
the Mandate of Palestine as the new state of Israel’s law (with some exceptions),
while Article 15 of the Ordinance amended the newly incorporated laws of Israel
to refer to Israel wherever the law referred to Palestine. 335 On the other hand, the
Area of Jurisdiction and Powers Ordinance, 336 adopted by the Knesset several
328.
See id. at ¶ 10.
329.
BIGER, supra note 271, at 190–219.
330.
Id.
331.
Id.
332.
See id.
333.
DECLARATION OF ESTABLISHMENT OF STATE OF ISRAEL, supra note 296.
334.
Law and Administration Ordinance, 5708-1948, art. 1 (1948–87) (Isr.),
http://www.israellawresourcecenter.org/israellaws/fulltext/lawandadministrationord.htm.
335.
Id. at art. 11, 15.
336.
Area of Jurisdiction and Powers Ordinance, 5708-1948, 29, (1948–87),
http://israellawresourcecenter.org/israellaws/fulltext/areajurisdictionpowersord.htm.
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months later, gave a more mixed message. While the Ordinance applied the laws
of Israel to all Mandatory areas controlled by the state, in both Articles 1 and 2 of
the ordinance, it referred to these areas as “both the area of the State of Israel and
any part of Palestine which the Minister of Defense has defined by proclamation as
being held by the Israel Defense Forces.”337
Likewise, some of the messages transmitted by the state of Israel upon its
independence were equivocal. For instance, in his letter to the U.S. government
asking for recognition of the new state of Israel, Eliahu Epstein, later appointed
Ambassador to the United States, wrote that “the state of Israel has been
proclaimed as an independent republic within frontiers approved by the General
Assembly of the U.N. in its Resolution of November 29, 1947.”338 However, other
transmissions by Israel, such as its notification to the U.N. Secretary General,
made no similar mention of boundaries. 339
The equivocation was not an accident. Ben-Gurion notified the
Provisional Council that the government had decided to be “evasive” on the matter
of borders until it saw whether the U.N. intended to implement Resolution 181.
Ben-Gurion stated that Israel’s readiness to respect the resolution depended on
whether it would be honored and enforced by the U.N.340 Ultimately, of course, the
U.N. took no action to honor or enforce the terms of the partition plan
recommended by Resolution 181. While the Resolution called for Security Council
action, the partition plan was never brought to a vote in the Security Council. 341
It is hard to see how this collection of evidence could disturb the
conclusion that Israel’s uti possidetis juris borders were those of the Palestine
Mandate. While the evidence shows that Israel was ready to be held to the much
more restrictive borders of the proposed partition, it does not show in any way that
Israel believed that the boundaries of the partition had ever been implemented by
the Mandatory or had ever become the administrative boundaries prior to Israel’s
independence.
Partition, cession, and recombination plans were featured prominently in
the League and General Assembly discussions over the Togolands, Walvis Bay,
Lebanon, and other Mandatory territories during the pendency of the Mandate. In
all cases, only those plans actually implemented resulted in a change of borders at
the moment of independence. There is little reason to think differently simply due
to Israel’s readiness to accept a compromise solution had one been available.
337.
Id. at §§ 1–2.
338.
See A Decade of American Foreign Policy 1941–1949, Independence of
Israel Letter from Eliahu Epstein, Agent of the Provisional Gov’t of Isr., to the President of
the
U.S.,
Yale
L.
Sch.:
The
Avalon
Project
(May
15,
1948),
http://avalon.law.yale.edu/20th_century/decad169.asp.
339.
Foreign Secretary of the Provisional Government of Israel, Israeli UN
Membership Application of 15 May 1948, U.N. Doc. S/747 (May 16, 1948),
http://unispal.un.org/UNISPAL.NSF/0/4733DDFC4D8F4ACF80256499004C9E77.
340.
RUBINSTEIN & MEDINA, supra note 326, at 83, 269–71.
341.
See THE CAMBRIDGE GUIDE TO JEWISH HISTORY, RELIGION, AND CULTURE
269 (Judith R. Baskin & Kenneth Seeskin eds., 2010).
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UTI POSSIDETIS JURIS
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C. Armistice Agreements
At the conclusion of Israel’s War of Independence, Israel held the
majority of the territory of the Mandate of Palestine. At this point, Israel again
offered to entertain proposals for partition, albeit along new lines. 342 However, no
partition agreements were ever reached. Negotiations with Israel’s neighbors
resulted in limited armistice agreements, rather than general peace treaties. And no
negotiations took place at all with the “all-Palestine government” or any other
purported representatives of the local Arab population outside Israel’s de facto
control.
Israel reached armistice agreements with each of its four neighbors—
Lebanon, 343 Syria, 344 Jordan, 345 and Egypt 346 —and each of the agreements was
clear in stating that the armistice lines demarcated the separation of forces (and,
therefore, the lines of de facto possession), but not the lines of legal entitlement.
Thus, it was clear that there was nothing in the armistice agreements to
undermine the application of uti possidetis juris.
D. Subsequent Events
The nearly seven decades since Israel’s independence have been full of
border controversies, as well as changes in possession of territory. Obviously, a
full examination of the legal implications of these many events is beyond the scope
of this Article.
Uti possidetis juris is a doctrine that establishes boundaries
retrospectively to the date of independence. Subsequent conduct can alter those
boundaries—not by changing the operation of the doctrine of uti possidetis juris,
but rather by transferring sovereignty under one of the methods recognized by
international law. The traditional list of means of transferring territorial
sovereignty include cession (voluntary transfer among states or to a new state) and
prescription (long-standing peaceful possession by a non-titleholder). 347
Additionally, states may unilaterally abandon title, and they may acquiesce to the
acquisition of title by another state, even without a formal cession. 348
A full examination of the boundaries of Israel today would require a
careful examination of Israel’s actions for the past 68 years in order to determine
whether any of them succeeded in altering Israel’s borders. While it is absolutely
clear that Israel has never agreed to any formal cession of its territorial sovereignty
to territories within the Palestine Mandate, and that the 19-year Jordanian,
342.
MORRIS, supra note 14, at 178; ITAMAR RABINOVICH, THE ROAD NOT TAKEN:
EARLY ARAB-ISRAELI NEGOTIATIONS (1991).
343.
See Lebanese-Israeli General Armistice Agreement, supra note 304.
344.
See Israeli-Syrian General Armistice Agreement, supra note 17.
345.
See Armistice Agreement Between the Hashemite Jordan Kingdom and
Israel, supra note 17.
346.
See Egyptian-Israeli General Armistice Agreement, supra note 17.
347.
MALCOLM N. SHAW, INTERNATIONAL LAW 495–521 (6th ed. 2008).
348.
Id.
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Egyptian, and Syrian occupation of parts of the Mandate are insufficient to transfer
title by prescription, it is more difficult to make categorical statements about
abandonment and acquiescence. While we fail to find sufficient evidence of either
abandonment or acquiescence, a full examination of the record is beyond the scope
of this Article.
However, it is worth noting that all of Israel’s peace treaties with
neighboring states to date—its peace treaties with Egypt 349 and Jordan350—have
ratified the borders between Israel and its neighbor as being based on the
boundaries of the British Mandate of Palestine. This, too, reinforces the application
of uti possidetis juris to establish the boundaries of Israel.
E. The State of Palestine
In 1993, Israel began a structured negotiation process with the Palestine
Liberation Organization (“PLO”) that was intended to lead to a negotiated and
unspecified “final status.” 351 The agreements set up an interim Palestinian
Authority with personal authority over Palestinians in the West Bank and Gaza
Strip, but not any part of Jerusalem. 352 In addition, the agreements divided the
West Bank and Gaza into several zones, giving the Palestinians territorial
jurisdiction in areas A, B, and H1 (the other zones are areas C and H2, which
comprise the majority of the West Bank). 353 Israel, however, was to maintain
ultimate security control over all areas pending the conclusion of final status
talks.354 Final status negotiations were scheduled to be completed by 1999,355 but
they were unsuccessful, though they have been periodically renewed. It is
anticipated that successful conclusion of the final status negotiations would result
in the establishment of an Arab state of Palestine within agreed-upon borders.
In 1988, the Palestinian National Council (the legislative wing of the
Palestine Liberation Organization) declared an independent state of Palestine. 356
The declared state has since won widespread recognition, including by the U.N.
General Assembly as a nonmember observer state in 2012, 357 but it has never
349.
MORRIS, supra note 14, at 178.
350.
Treaty of Peace, Egypt–Isr., Mar. 26, 1979, 18 ILM 362 (1979).
351.
See generally RUBIN, supra note 314.
352.
The Israeli-Palestinian Interim Agreement (“Oslo II”), Isr.-Palestine (Sept.
28,
1995),
http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israelipalestinian%20interim%20agreement.aspx.
353.
Id. at art. XI; Protocol Concerning Redeployment in Hebron, § 2 (Jan. 17,
1997), http://www.jewishvirtuallibrary.org/jsource/Peace/hebprot.html; see generally
GEOFFREY R. WATSON, THE OSLO ACCORDS: INTERNATIONAL LAW AND THE ISRAELIPALESTINIAN PEACE AGREEMENTS (2000).
354.
See generally WATSON, supra note 353.
355.
Israeli-Palestinian Interim Agreement (“Oslo II”), supra note 353, at art. V.
356.
See NEGOTIATIONS AFFAIRS DEPARTMENT OF THE PALESTINIAN LIBERATION
ORGANIZATION, PALESTINE NATIONAL COUNCIL DECLARATION OF INDEPENDENCE (Nov. 15,
1988), http://www.jewishvirtuallibrary.org/jsource/Peace/pncdec.html.
357.
U.N. GAOR, 67th Sess., U.N. Doc. A/Res/67/19 (Nov. 29, 2012),
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/67/19.
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fulfilled the legal requirements of statehood, including, most importantly, the
existence of a government that exercises control over some territory. 358
It is assumed that if negotiations between Israel and the PLO reach a
successful conclusion, a new Palestinian state will come into existence within
some of the territory of the former Palestine Mandate. At that time, the agreement
will specify the boundaries of the new state and, accordingly, strip Israel of
territorial sovereignty. If a new state of Palestine were able to seize effective
control over territory without agreement, this too might divest Israel of some
territorial sovereignty. It might even be possible that a new unilaterally created
state of Palestine would use the doctrine of uti possidetis juris to claim sovereignty
over all of areas A, B, and H1.
Israel’s treatment of the Gaza Strip adds an important complication. The
Gaza Strip was occupied by Egypt from 1948 until 1967, when it was captured by
Israel in the Six Day War. Israel imposed a military administration on the Gaza
Strip until 1993; thereafter the Oslo Accords granted the newly created Palestinian
Authority territorial jurisdiction to govern the entire Strip, except for Israeli
settlements.359 In 2005, Israel withdrew all military forces and expelled all Israeli
civilians from the Gaza Strip, relinquishing control over the area. 360 The
Palestinian Authority lost control of the Strip less than two years later, when
Hamas seized the reins of power in a rapid military action. 361 Hamas has ruled the
Gaza Strip since. It has periodically reached agreement with the PLO (or the Fatah
organization which is the largest component organization of the PLO) to return
Fatah, the PLO, or the Palestinian Authority to the Gaza Strip, but the agreements
have never been implemented. Hamas does not subordinate itself to either Israel or
the Palestinian Authority, but it does not hold itself out as the government of an
independent state either.
The government of the Gaza Strip, therefore, is unique. It is not like the
Palestinian Authority administration of areas A, B, and H1 of the West Bank. Nor
is it like the Israeli administration of areas C and H2 of the West Bank. The de
facto separation of the West Bank and Gaza into three distinct administrations
(Hamas in Gaza; the Palestinian Authority in areas A, B, and H1; and Israel
military administration in areas C and H2) would potentially affect uti possidetis
juris borders of a future Palestinian state. Additionally, it is possible to argue that
Israel voluntarily abandoned any claims of territorial sovereignty it might have had
in the Gaza Strip, although there is no unequivocal documentary evidence of such
an abandonment. In any event, developments in the Gaza Strip will no doubt affect
future claims of sovereignty in the event of Palestinian statehood.
358.
See, e.g., James Crawford, The Creation of the State of Palestine: Too Much
Too Soon?, 1 EUR. J. INT’L L. 307 (1990).
359.
See Israeli-Palestinian Interim Agreement (“Oslo II”), supra note 353, at art.
XI.
360.
See MORRIS, supra note 14, at 178.
361.
Steven Erlanger, Hamas Seizes Broad Control in Gaza Strip, N.Y. TIMES,
June 14, 2007, at A1.
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Unfortunately, a full legal examination of the potential boundaries of a
future state of Palestine is beyond the scope of this Article.
CONCLUSION
This Article has explored the doctrine of uti possidetis juris, its status in
international law, and its application to the boundaries of Israel.
The doctrine is widely accepted as binding under customary international
law, and its application to the case of Israel is straightforward, awarding Israel
territorial sovereignty of the disputed areas of the West Bank, the Gaza Strip, and
East Jerusalem, pending Israeli surrender of such claims through abandonment or
cession. This result is contrary to the common political wisdom but fully in line
with application of the law in other contexts.
It is likely that a future peace agreement between Israel and the
Palestinians will reflect the parties’ presumed desire to accommodate Palestinian
self-determination, as well as the right of states to modify existing uti possidetis
juris borders by agreement. Uti possidetis juris is not, therefore, the last word on
matters.
At the same time, it is likely that any future solution to the boundary
disputes of Israel that wishes to take international law seriously will have to take
account of the rules of uti possidetis juris. The doctrine is an indispensable starting
point for legal discussions of borders.